The Supreme Court heard oral arguments on Tuesday in U.S. v. Jones, where the Court considered whether tracking a vehicle on public streets with an affixed GPS device and without a warrant violates the vehicle owner’s Fourth Amendment rights. This question has received considerable academic attention, and a very thorough legal analysis of the briefing is offered by Orin Kerr on SCOTUSblog.
A fascinating part of Tuesday’s arguments was how the Justices seemed less interested in precedent and more interested in the capacity for technology like GPS to allow law enforcement to erase the distinction between the public and the private. Chief Justice Roberts first signaled the Court’s mood when he questioned whether the 1983 Supreme Court case U.S. v. Knotts is still good precedent in light of changes in technology. That case held that police tracking with a beeper inside of a portable container is not a Fourth Amendment violation. Justice Roberts noted that “the technology is very different and you get a lot more information from the GPS surveillance than you do from following the beeper.” Although it is a settled proposition that surveillance via police car on public roads is acceptable, the Justices seemed to find the ability to track a car’s every movement with very little effort disturbing, with Chief Justice Roberts commenting that GPS tracking is “dramatically different” than traditional surveillance. Justice Alito shared a similar concern, specifically that computers have decreased the expectation of privacy that comes with limited police resources. And Justice Breyer captured the worries of the Court in musing that “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen of the United States . . . what happened in the past is memories are fallible, computers aren’t . . . so, if you win, you suddenly produce what sounds like 1984.” Orin Kerr on The Volokh Conspiracy summarized the Court’s feeling succintly: “the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it’s necessary to avoid 1984.” Yet from the questioning, it is unclear how the case will come out, with the Court seemingly unsatisfied after oral arguments that a constitutional rule to quell their Orwellian fears had been identified.
The Court also considered whether legal limits on utilizing new technology by law enforcement should come from the courts or from legislatures. It seems that regulating the use of new technology is distinctly amenable to legislative action, with legislatures able to quickly respond to ever-changing technology. However, in a world where privacy is increasingly devalued (as evidenced by the popularity of geo-tagging and “checking-in” on social media sites), it is by no means certain that the political will exists to meaningfully protect privacy. Whether the Fourth Amendment provides this protection is a question the Supreme Court will answer next year.