A Supreme Court decision, U.S. v. Jones, in January 2012 signals the upcoming war on privacy. The Obama administration in effect claimed that it could put a tracking device on any American's car and track it indefinitely and without a warrant. Thankfully, the Supreme Court unanimously rejected this idea.
The defendant, Antoine Jones, owned a nightclub in the District of Columbia. The FBI and D.C. police suspected him of drug trafficking. They initially got a warrant to track his Jeep Grand Cherokee, but the warrant ran out.
After it ran out, the police agencies put a GPS tracking device on the bottom of his car and via satellite tracked its movement for the next 28 days. The government used the GPS information to connect Jones to a stash house that stored $850,000 in cash and 97 kilograms of cocaine. The trial court sentenced him to life imprisonment. The federal appellate court in the District of Columbia reversed, finding that the conviction rested on a warrantless search using the GPS device and that such a search violated the Fourth Amendment.
The Fourth Amendment says, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrant shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized."
The Supreme Court held the government's attachment of the GPS device to the vehicle and its use of the device to monitor the vehicle's movements, constituted a search under the Fourth Amendment. It reasoned that a car was an "effect" and the government's physical intrusion onto it was therefore a search. It noted that at the time the Amendment was adopted, intruding on such physical property would have been considered a search.
Justice Scalia writing for the majority of the Court (along with Justices Thomas, Roberts, Kennedy, and Sotomayor) argued that for the purposes of the Fourth Amendment, there were two different cases in which government information-gathering is a search that requires a warrant. One case occurs when the government physically intrudes onto someone's body or property. A second case occurs when the government information-gathering violates a person's reasonable expectation of privacy. This second line follows a famous case, Katz v. United States, 389 U.S. 347 (1967). In that case, the FBI put an eavesdropping device outside a public phone booth. The government claimed that it didn't violate the Fourth Amendment because it neither intruded on Katz's property nor physically intruded into the phone booth. In Katz, the Court rejected that argument. In Jones, Scalia concluded that the GPS-tracking was a search according to the physical-intrusion test and therefore requires a warrant.
Samuel Alito wrote a minority concurrence (along with Justices Kagan, Breyer, and Ginsburg) that argued that the Court should address the reasonable expectation of privacy in this case. He further opined that even long-term monitoring without a warrant that violated people's reasonable expectations of privacy might be acceptable if it involved an extraordinary offense.
The physical-property-intrusion test is a good one because it tracks the original understanding of those who ratified the Amendment and sets out a bright line that the government cannot cross. In contrast, the reasonable-expectation test has severe problems. First, it is not clear how you determine reasonable expectation. Polling results are notoriously subject to how questions are framed. Nor is it clear why our Constitutional rights should depend on the latest polls from people who are neither informed about the issue nor about much else regarding police searches. Nor should the reasonable expectation of privacy depend on the intuitions of elderly Justices who have little connection to the ordinary lives of Americans, let alone poor minorities and others who are subject to frequent police searches.
Second, Jacob Sullum of Reason magazine points out, the physical-intrusion test will become increasingly irrelevant. In the future government tracking will use surveillance technologies that do not involve physical trespass. Examples of such technologies include vast camera networks, satellite tracking of GPS and cell phone signals, surveillance by drone aircraft, and so on. In the future, Justice Sotomayor points out, the federal government could track everyone's exact whereabouts from their cell phone because it emits tell-tale signals. As Justice Kagan points out, in London, just about every place a person goes is monitored by a camera network.
Less you think this is something found in London and not here, in 2010, SUNY Fredonia Vice President for Student Affairs David Herman stated that SUNY Fredonia has nearly 100 cameras on campus and that the cameras cover probably 80 percent of the campus. He pushed (the Dunkirk OBSERVER says "joked") the village of Fredonia to buy and use cameras to monitor people downtown and on Temple Street. Apparently, Fredonia students and residents need to be watched very closely.
State and local governments are beginning to buy and use drones to track people's movements from the air as part of the liberty-crushing drug war among other things. Also, as James Bamford of Wired magazine points out that the National Security Administration was sifting through domestic and foreign cell-phone calls and emails without a warrant and without physically intruding onto anyone's property.
Third, as Dahlia Lithwick of Slate points out, the more frequently the state invades people's things and information, the more it becomes commonplace. The more it becomes commonplace, the more it seems reasonable to the populace. The more it seems reasonable, the more it passes the reasonable-expectation-of-privacy test. Thus, this test rewards the government for aggressively pushing boundaries.
One can understand Obama administration's frustration regarding the Jones decision. To its eternal discredit, in the past the Supreme Court has said that the government need not get a warrant to conduct random roadblocks for drunk driving or to routinely search through people's garbage, open fields, and car cabins, despite the fact that these searches obviously violate the Fourth Amendment. The fact that the American people and courts have laid down as the government stripped away search-and-seizure rights has ominous implications for the future.
The Court arguments indicate that the loathsome Obama administration believes that the Constitution allows the government to search the movement of every car in this country for 24 hours a day 7 days a week so long as the car is not inside a house. Obama's Justice Departments believes such searches are morally permissible not just when pursuing terrorists, but also when pursuing drug crimes and probably other victimless activities such as prostitution and gambling. A bipartisan bill to prohibit the government collecting GPS information without a warrant was introduced in the Senate in June 2011, but the Obama administration appears to oppose it and the Senate has yet to vote on it.
If government search-freaks like the Obama administration are not smacked down, the Constitution will be further shredded and big brother will eventually monitor our whereabouts, communications, and perhaps even thoughts.
Stephen Kershnar is a philosophy professor at the State University of Fredonia. Send comments to firstname.lastname@example.org.