Is Big Brother Keeping Tabs on You?
Sunday, May 6, 2012 • 2:22pm
United States v Jones
Generally, citizens believe that they have a right to privacy in their everyday affairs and that they are not being monitored, unless of course they find a shadow following them. However, in today’s modern technological age, people can be tracked from hundreds of miles away. It’s hard to think of a cell phone application that does not ask or require location services. Typically, law-abiding citizens do not consider the reduced privacy by enabling location services. Commonly, enabling location services on a cell phone provides for greater convenience in the use of cell phone applications and Internet searches. But, individuals rarely consider their privacy as being jeopardized by enabling location-based services on their mobile phone or tablets. As technology evolves further, law enforcement is taking advantage of location based services; however the United States Supreme Court recently decided a case regarding 4th Amendment rights relative to GPS tracking. Although the Supreme Court’s decision is a step in the right direction, with continuing advancements in technology, one will always wonder where the Court stands on law enforcement’s use of technology that does not require a physical intrusion onto private property to track an individual’s movements, and whether the tracking data will ultimately be admissible in Court?
In a recent decision, the United States Supreme Court breathed life into our Fourth Amendment rights. On January 23, 2012, the United States Supreme Court decided a landmark case applying the 4th Amendment to today’s technology. In this case, the Government suspected drug trafficking acts by Antoine Jones and obtained a warrant, authorizing law enforcement to install a Global-Positioning-System (GPS) on his Jeep truck in the District of Columbia, with ten days to execute the warrant. The GPS was installed underneath the outside body of the truck on the eleventh day in Maryland. Antoine Jones’s vehicle was tracked 28 days before the FBI and Metro Police task force brought charges against him. The GPS attachment to the vehicle and its use allowed the Government to monitor his movements, thus constituting a search under the Fourth Amendment.
The District Court suppressed the GPS data obtained while the vehicle was parked at the Jones’s residence, but held the remaining data admissible because Jones had no reasonable expectation of privacy when the vehicle was on public streets. Jones was convicted and the D.C. Circuit reversed the earlier District Court decision, concluding that admission of the evidence obtained by the warrantless use of the GPS device violated his Fourth Amendment protections.
The Fourth Amendment protects the “right of the people to be secure in their houses, papers, and effects, against unreasonable search and seizures.” Trespassing was used to describe areas of concern from Government searches: persons, houses, papers, and effects it enumerates. In Katz, the “expectation of privacy test” established that property rights are not the sole measure of Fourth Amendment violations. These were used as the basis for an unreasonable search and seizure.
GPS device data reveals a wealth of information about trips of political, professional, religious, sexual, or familial associations. It can relay information instantaneously by transmissions of signals by satellite to a base signal.
In Justice Scalia’s majority opinion the Court ruled that the mere installation of a GPS unit constitutes a search when the purpose of the device was to track the vehicles movements. Since Jones was the “exclusive driver,” of the vehicle, his rights are considered private property and therefore covered under the Fourth Amendment. The Government is considered to have physically occupied private property for the purpose of obtaining information unlawfully. During the four-week investigation, the search revealed over 2,000 pages of data. The investigation was deemed as being “too long” in the eyes of the crime being investigated. The search was based on strict reading of the Fourth Amendment.
In her concurring opinion, Justice Sotomayor stated that the Government obtained information by physically intruding on a constitutionally protected area, by installing a GPS tracking device on Jones’ Jeep without a valid warrant and without Jones’ consent. The Government usurped Jones’ property for the purpose of conducting surveillance on him, thereby invading privacy interests long afforded, and reportedly entitled to, Fourth Amendment protection. It expanded upon Scalia’s opinion of not only focusing on trespassory intrusions on property, but also considering that a search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable. GPS monitoring is cheap in comparison to conventional surveillance technique and evades ordinary constraints of abusive law enforcement practices.
By having limited or no checks and balances against the Government, its actions can alter the relationship between citizen and government in a way that’s inimical to democratic society. Physical intrusion is now unnecessary to many forms of surveillance, such as GPS in factory or owner installed vehicles or GPS-enabled smartphones. As time goes on we must adapt to the Katz test by shaping it to societal privacy expectations.
A final concurring opinion wrote by Justice Alito stated that we must adapt to the twenty first century surveillance technique, by the use of GPS technology. Alito does not agree with an approach that is based upon eighteenth century tort law. However, Alito stated that a seizure of property occurs when there is meaningful interference with an individual’s possessory interest in that property. Alito interpreted the Fourth Amendment more loosely than Scalia’s majority opinion: since the Government obtained evidence, it is considered to be a “search” by the Court. Alito disagreed with the Karo decision that “an actual trespass is neither necessary nor sufficient to establish a constitutional violation.”
Comparisons are made to police installing a GPS unit, which is considered to be a search, in contrast to police undercover cars and aerial assistance, which do not offend Fourth Amendment constraints. Technology changes these expectations of privacy and therefore, new technology may provide increased convenience or security at the expense of one’s privacy. With fast evolving technological advances on the rise, it is conceivable that law enforcement may develop the ability to track a vehicle’s movements without a physical intrusion upon the vehicle. Such tracking is not beyond the realm of possibility considering that such technology is already being developed, if not already available. One can imagine the scenario, where a car’s movements are tracked via the vehicle’s on board computer system which has access to a central hub, thereby eliminating the need for law enforcement to physically intrude upon the vehicle.
This decision has spurred lots of buzz regarding technology, although the Supreme Court addressed GPS tracking through an 18th Century Tort law framework. However, with ever changing technology, one can only speculate how the Court will address novel issues such as GPS tracking without physical intrusion upon personal property. Nonetheless, the FBI cut back on the use of GPS surveillance in investigations following the Jones case. Perhaps the Supreme Court will take on more technology cases, as social networking and devices with location-enabled services become a larger part of our every day life.
If anyone has any questions regarding the stages of a criminal case please feel free to call my law office at 732-249-9933. My web site contains useful information about Criminal Law, DWI and Municipal Court www.ebm-law.com. Also I have a twitter account in which I post changes to the laws in NJ, interesting articles on current legal matters in the newspaper and other helpful information. I can be followed on twitter at www.twitter.com/lawebmorrell
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