bjbjLULU JEFFREY BROWN: In 2005, police secretly attached a GPS device to a Jeep owned by Antoine
Jones, a Washington, D.C., nightclub owner.
Information gathered from tracking his movements eventually helped bring about his conviction
for cocaine trafficking.
Today, though, the Supreme Court ruled the police action was a violation of the Constitution.
The decision itself was unanimous, but the justices were divided in their reasoning,
as they grappled with tricky issues of law, technology and privacy.
As always, Marcia Coyle of The National Law Journal is here to walk us through the decision.
Welcome back.
MARCIA COYLE, The National Law Journal: Thanks, Jeff.
JEFFREY BROWN: All right, so fill in some of the facts of this case.
For one thing, this surveillance went on for quite a while.
MARCIA COYLE: It did.
The GPS device was attached to the underbelly of the -- Jones' Jeep Grand Cherokee.
And the police monitored the Jeep's movements 24 hours a day for 28 days.
JEFFREY BROWN: So the court ruled unanimously in its result.
. . MARCIA COYLE: Right.
JEFFREY BROWN: . . . written by Justice Scalia.
Tell us about that.
MARCIA COYLE: Well, first of all, it was the United States that brought this appeal to
the Supreme Court.
And the United States argued basically that this wasn't a search within the Fourth Amendment
because Mr. Jones had no reasonable expectation of privacy in the underbelly of his jeep or
on the roads on which the jeep traveled, public roads that everybody could see.
Justice Scalia in his opinion today rejected that argument.
He said that the Fourth Amendment for most of our nation's history has embodied a special
concern for government trespasses into the areas that the Fourth Amendment protects.
And those areas are our right to be secure in our persons, houses, papers and effects.
The vehicle is an effect, he said.
When the government obtains information through a physical intrusion into one of those protected
areas, it is a search.
JEFFREY BROWN: So he's saying it's different than if the police just followed this car
for all that time, something fundamentally different in the technology that's invasive?
MARCIA COYLE: It's actually the physical attachment, plus the obtaining -- the use of it to obtain
the information.
He said those are the two elements that you need that equal a search under the Fourth
Amendment.
JEFFREY BROWN: Now, four justices -- this is the interesting part here -- they went
along with the decision, but not with Justice Scalia's reasoning.
MARCIA COYLE: Yes.
Right, exactly.
Justice Alito wrote separately.
And he was joined by Justices Ginsburg, Breyer and Justice Kagan.
And he felt there was a problem with this trespass approach to the Fourth Amendment.
He said, for example, if the government persuaded or ordered auto manufacturers to install GPS
devices in every vehicle, the Fourth Amendment wouldn't provide protection for our rights.
JEFFREY BROWN: So, if it was there already, as opposed to the police physically.
. . MARCIA COYLE: Right, there was no physical intrusion on a protected right.
He said the best way to approach this is to look at whether there was a reasonable expectation
of privacy in these circumstances.
He explained that short-term monitoring by GPS devices may accord with what our expectations
of privacy are.
Long-term may not.
The court, he said, wasn't going to provide any bright lines here.
It was enough to say, he said, that this search crossed the Fourth Amendment line before the
four-week period was up.
JEFFREY BROWN: But he's arguing for or at least groping towards a -- I guess a more
expansive notion of privacy in the technologic areas.
MARCIA COYLE: He absolutely is.
And so did Justice Sotomayor, who joined Justice Scalia's opinion but wrote separately.
Both of them noted that, today, there are many types of surveillance that don't involve
physical intrusion.
And they talked about those like, the cameras at intersections that are catching speeders.
JEFFREY BROWN: Of course.
MARCIA COYLE: Justice Sotomayor even said that it may be time to reexamine the premise
that information given voluntarily to third parties is -- that there's no reasonable expectation
of privacy in that, because we give so much information through Internet transactions
to the government for various reasons.
JEFFREY BROWN: And there's shifting even by the day, right, in terms of how much we give
and routinely?
MARCIA COYLE: Exactly.
Yes, and that's the tricky part for the court and why I think this is a narrow decision,
and the court is treading very cautiously here, because, as technology changes, so do
our expectations of privacy.
And a rule laid down today may not comport with that expectation five to 10 years.
JEFFREY BROWN: Well, so, therefore, how significant -- how do you parse this in terms of significance
when you get a -- this kind of decision with different kinds of reasoning and only going
so far?
(LAUGHTER) MARCIA COYLE: Well, I think together the opinions send a very clear message, especially
to law enforcement, that if you want to use something like a GPS tracking device, get
a warrant.
JEFFREY BROWN: That's clear, right?
MARCIA COYLE: Absolutely, and also that the court is leaving, as it says, as Justice Scalia
pointed out, for another day the more difficult questions that are obviously out in the lower
courts, but will get to the Supreme Court.
They're keeping an eye on how this technology evolves and how you and I react to it.
JEFFREY BROWN: This goes back -- I remember the argument, because you were here for the
argument.
MARCIA COYLE: Yes.
JEFFREY BROWN: And they were talking about George Orwell and "1984."
MARCIA COYLE: Yes, "1984."
JEFFREY BROWN: And they were talking about the changes in technology.
So, they are very aware that these kinds of questions about technology, privacy and law
are unfolding by the day.
And they will have to deal with it for a long time to come.
MARCIA COYLE: Absolutely.
And they have begun to do that.
Terms ago, they had, if you recall, the case involving the Fourth Amendment search of police
pagers for their text messages.
And even there, they wrote a very narrow decision.
They're moving very cautiously in this area.
JEFFREY BROWN: And in the meantime, Mr. Jones, Antoine Jones, his case?
MARCIA COYLE: His conviction has been reversed.
It was reversed by the lower court in this case.
It will be up to the prosecution to decide whether they have enough evidence without
the GPS information to retry him.
JEFFREY BROWN: All right, Marcia Coyle of The National Law Journal, thanks, as always.
MARCIA COYLE: My pleasure, Jeff.
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