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

from the surprise,-surprise dept

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.
Hide this

Thank you for reading this Techdirt post. With so many things competing for everyone’s attention these days, we really appreciate you giving us your time. We work hard every day to put quality content out there for our community.

Techdirt is one of the few remaining truly independent media outlets. We do not have a giant corporation behind us, and we rely heavily on our community to support us, in an age when advertisers are increasingly uninterested in sponsoring small, independent sites — especially a site like ours that is unwilling to pull punches in its reporting and analysis.

While other websites have resorted to paywalls, registration requirements, and increasingly annoying/intrusive advertising, we have always kept Techdirt open and available to anyone. But in order to continue doing so, we need your support. We offer a variety of ways for our readers to support us, from direct donations to special subscriptions and cool merchandise — and every little bit helps. Thank you.

–The Techdirt Team

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

Reader Comments

Subscribe: RSS

View by: Time | Thread

  1. icon
    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.

Add Your Comment

Have a Techdirt Account? Sign in now. Want one? Register here

Subscribe to the Techdirt Daily newsletter

Comment Options:

  • Use markdown. Use plain text.
  • Make this the First Word or Last Word. No thanks. (get credits or sign in to see balance)    
  • Remember name/email/url (set a cookie)

Follow Techdirt
Essential Reading
Techdirt Deals
Report this ad  |  Hide Techdirt ads
Techdirt Insider Discord

Introducing the new Techdirt Insider Chat, now hosted on Discord. If you are an Insider with a membership that includes the chat feature and have not yet been invited to join us on Discord, please reach out here.

Recent Stories

This site, like most other sites on the web, uses cookies. For more information, see our privacy policy. Got it

Email This

This feature is only available to registered users. Register or sign in to use it.