Fourth Amendment Lives? Supreme Court Says GPS Monitoring Is A Search That May Require Warrant [Updated]

from the surprise,-surprise dept

Mon, Jan 23rd 2012 1:06pm — Mike Masnick

We've been following various cases involving courts and government regularly chipping away at the 4th Amendment. This has been especially true when it comes to GPS surveillance cases. While there have been a variety of different rulings in a variety of different courts, many federal courts have more or less said that law enforcement can spy on people at will with GPS devices (state courts have been a little less open to the idea). One interesting ruling on the federal side came out in August of 2010, when the DC Circuit ruled long term GPS surveillance required a warrant -- though was a bit unclear on what constituted "long term." Either way, this was the case that finally made it to the Supreme Court.

The Court came out with its ruling today, and it's a somewhat surprising defense of the 4th Amendment (pdf), saying that, yes indeed, the government first needs to get a warrant before attaching a GPS device to your car. This is a pretty big win for privacy advocates and those who believe in the general concept of the 4th Amendment. Update: As a few people have pointed out, it's not even that clear. Instead, it looks like they really punted. The court really stops just short of saying that a warrant is needed -- it just says that placing the device is a search. It's possible to interpret that to mean that placing the device was a reasonable search which didn't require a warrant. And that's what some are expecting.

Unfortunately, the win isn't as "clean" as it could have been. While it is a full 9-0 rout on the government's argument, the court is split on the reasoning as to why. The majority (five Justices) argues that ~~a warrant is needed to attach a device to a car. Specifically, they argue that~~ the process of putting the device on a car is a form of "search" (based on the idea that the government was trespassing), which requires a warrant. This leaves wide open the question of whether or not surveillance via existing GPS equipment also violates the 4th Amendment. And considering that many vehicles now have built-in GPS, and an increasing number of mobile phones do as well (which the government is almost certainly tracking), it seems like that's a key loophole left by the majority here. The majority basically punts on that issue.

The concurring opinion, by the remaining four Justices seeks to follow the ruling of the appeals court in saying that it's the long term surveillance that's the problem. It notes that someone out in public doesn't necessarily have an expectation of privacy, but longer term surveillance changes the equation. However, the majority swings right back to the "thorny questions" that many of us noted with the original decision: how long is "long term?"

That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation.... What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

It's interesting to see that the split among the Justices doesn't fully fall along the usual "cliques" within the Supreme Court. The majority opinion was written by Justice Scalia, with Roberts, Thomas and Kennedy (a block that will often vote together)... but also with Sotomayor, who is usually expected to side with the other group. Sotomayor actually wrote a separate concurrence that basically explains why she mostly agrees with the other group... but more or less thinks it's too early to rule on those other issues, because this case can be decided on "a narrower basis." The larger concurrence comes from Justice Alito (who frequently goes with Scalia, Roberts and Thomas...) and is joined by Ginsburg, Breyer and Kagan. It argues that rather than focusing on trespassing and search, we should go straight to the question of "reasonable expectation of privacy," and (as noted above) such long term surveillance, even if some of that info is public, violates that expectation.

So, at the top level, this is a good ruling -- and surprising support for a bruised and battered 4th Amendment. However, it still leaves open plenty of questions, meaning that it's likely that we'll see a few more similar and/or related cases in the near future before the boundaries of the government's ability to spy on people without a warrant is more fully explored.

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Filed Under: 4th amendment, expectation of privacy, gps, privacy, supreme court, surveillance, trespassing

23 Comments

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Anonymous Coward, 23 Jan 2012 @ 1:12pm

Just wanted to comment to say that the ruling leaves open the possibility that a warrant might not be required to attach a GPS device in all cases:

http://volokh.com/2012/01/23/what-jones-does-not-hold/

Also, thanks for something non-SOPA-related for a change. I hadn't read many articles here for a while.
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Anonymous Coward, 23 Jan 2012 @ 1:16pm

This is actually silly. Almost every one has a cell phone with gps, etc running all of the time.

I'm willing to bet, getting a warrant to track a cell is MUCH easier than a warrant to attach a gps to a car.

So my tinfoil hat is starting to burn....
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Matt Fender, 23 Jan 2012 @ 1:24pm

Warrant?
U.S. v. Jones does not hold that a warrant is required:
http://volokh.com/2012/01/23/what-jones-does-not-hold/
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pixelpusher220 (profile), 23 Jan 2012 @ 1:32pm

Re:
The difference is that with a phone, we willfully carry it as we do likewise willfully have GPS in a car we buy. You know it's there it's not a secret even if you can't see the 'data'.

I would like to come into the 21st century where data 'generated' by myself is subject to the same 4th amendment restrictions as anything I have on my person.

However, this case was not about that issue and I'm quite happy the court decided not to expand beyond the current case. I'd rather have more narrow rulings than overly broad ones.
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Kevin H (profile), 23 Jan 2012 @ 1:42pm

Even a blind squirrel finds a nut once and a while.

Even a broken clock is right twice a day.

Its great news that they agreed, but it hardly makes up for the crap (Citizens United etc.) that they have also ruled on.
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Gwiz (profile), 23 Jan 2012 @ 1:56pm

Re: Re:
...we willfully carry it as we do likewise willfully have GPS in a car we buy.

Curious here. Since I am "poor folk" and the economy still sucks I haven't purchased a new car in quite awhile, can the GPS in a vehicle be removed? Is it physically possible and is there a law against that yet?
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That Anonymous Coward (profile), 23 Jan 2012 @ 2:27pm

Even SCOTUS members don't want to be tracked to the lobbyist luncheons unless there is a warrant.
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C.A.Brobst (profile), 23 Jan 2012 @ 2:30pm

Above all else, protect the Constitution from the police state.
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Michael, 23 Jan 2012 @ 2:50pm

Solution.
Its very easy to buy devices to sweep for such things. If you find one, call it in as a suspected bomb that has been attached to your car. The local media will be all over that.
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Antone Johnson (profile), 23 Jan 2012 @ 3:00pm

Re:
Why? Getting a search warrant requires persuading a judge, no matter how you slice it. What was alarming before this decision was the prospect of being tracked 24/7 without a warrant.
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Rick Scot, 23 Jan 2012 @ 3:23pm

There's a bill for that
Of course, the hero of SOPA, Senator Wyden, has a bill to require a warrant for the attachment of a device, OR the tracking of a cell phone. The Supreme Court was never going to do the whole thing.
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DCX2, 23 Jan 2012 @ 4:28pm

SCOTUS punts again
I bet SCOTUS would be real good at kicking field goals in American football, given how often they punt.

So many times, a very important question comes before the Supreme Court, and they punt on a technicality to avoid answering any hard questions. This just means that some other fool is going to need to pony up the big bucks to litigate an issue all the way to SCOTUS again and hope they don't have yet another technicality to punt on.

I mean, why rush to disambiguate the law when punting will allow said law to be abused for at least a few more years?
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Anonymous Coward, 23 Jan 2012 @ 5:11pm

Re: SCOTUS punts again
You complain that the Supreme Court provides guidance rather than hard and fast rules, letting lower courts and lots of litigants sort out the details. Would you prefer that five people dictate the legal fate of 310 million all by themselves?
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Jay (profile), 23 Jan 2012 @ 5:35pm

Re: Re: SCOTUS punts again
Look what could happen with their ideology
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Anonymous Coward, 23 Jan 2012 @ 7:01pm

The 4th is in the ICU(Intensive Care Unit) hanging by a thread.
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nasch (profile), 23 Jan 2012 @ 7:07pm

According to NPR's coverage, one of the opinions also indicated that in an age when people give up so much of their information to private parties, we may need greater protection against the government obtaining information from those third parties. I found that encouraging.
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Anonymous Coward, 24 Jan 2012 @ 12:52am

Sotomayor's concurring opinion stating that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties" and that she "would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection" is indeed very encouraging. The claim that a person has no "reasonable expectation of privacy in information voluntarily disclosed to third parties" is the basis for a whole array of intrusive government actions. For Sotomayor to directly question it--and in particular with reference to electronic and Internet information--seems to me to send a shot across the bow at the government. At the least, it signals that the Court is taking notice that pervasive electronic surveillance is extremely dangerous to a free society.
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tsavory (profile), 24 Jan 2012 @ 1:29am

Re: Re:
ISP's (including the phones) will track all your data for 18 months soon enough. H.R. 1981 read the provisions about data retention.
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DCX2, 24 Jan 2012 @ 8:44am

Re: Re: SCOTUS punts again
I complain when the Judicial system itself cries out for some precedent and the Justices sheepishly hide behind jurisprudence to avoid pissing anyone off. Sometimes, there is serious case law that SCOTUS needs to establish, and in this case some of the Justices even said "We should make this about the Right to Privacy and not Tresspassing". Instead, the majority simply took the easy way out, ruled narrowly, and all but ensured that someone else will have to come back to the Supreme Court AGAIN in order to ascertain the constitutionality of e.g. warrantless surveillance of cell phones.
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nasch (profile), 24 Jan 2012 @ 6:01pm

Re: Re: Re: SCOTUS punts again
I complain when the Judicial system itself cries out for some precedent and the Justices sheepishly hide behind jurisprudence to avoid pissing anyone off.

Yeah, and if they had ruled more broadly they would have been "activist judges." :-\
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Anonymous Coward, 5 May 2012 @ 7:43am

Re: Re: Re:
if not yet, there will be one soon, to protect you or protect you from terrorists; no doubt or some other lame excuse.
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sri (profile), 12 Jul 2014 @ 2:32pm

Gps Tracker
Besides some countries like eroupe GPS tracking is banned .Eroupe manufactures GPS trackers. as like the court says it is search not spying. Besides the purpouse it was indented is matters

very nice article !!
thanks to author
Regards,
GPS tracker in chennai
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sri (profile), 12 Jul 2014 @ 2:33pm

Re:
it aslso drains your mobile battery
GPS tracker in chennai
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