Wednesday, February 08, 2012

Privacy and the GPS

Posted by Sherry F. Colb

The first installment of my Justia Verdict column today examines the implications of the U.S. Supreme Court decision in United States v. Jones, in which the Court unanimously ruled that attaching a GPS to a suspect's car and thereby monitoring the car's travels for twenty-eight days represents a Fourth Amendment "search."  In the column, I discuss some of the important differences between the majority's and the concurring opinions' respective analyses of GPS-monitoring.

In brief, Justice Scalia focuses on the common-law trespass on "effects" entailed in attaching a tracking device to a suspect's vehicle, and Justice Alito focuses on the tremendous invasion of privacy involved in monitoring an individual's movements, even out in public, for twenty-eight days.  As I have discussed elsewhere, an emphasis on trespass leaves people quite vulnerable to electronic invasion.  Had the government, for example, installed the GPS in a rental car just before the respondent had rented it, then Justice Scalia's majority approach would have little to offer.

On the other hand, Justice Scalia does leave open the possibility that he would have decided the case the same way even absent the trespass.  More importantly, Justice Sotomayor, the fifth vote for the majority, makes it reasonably clear that she would have reached the same result without the trespass, thus evidencing the likelihood that there is now a majority on the Court for reducing the significance of technical trespass on property (form) and correspondingly enhancing the significance of serious intrusions on privacy (substance) in Fourth Amendment doctrine.

In this post, I want to consider the difficulty of assessing the privacy question in a satisfying and predictable fashion now that we have entered the world of electronic surveillance.  Justice Scalia's trespass approach has the advantage of giving us seemingly clear guidelines and relative predictability:  if the government trespasses on "persons, houses, papers, and effects" to gather information, then it triggers the protections of the Fourth Amendment against unreasonable searches.

On Justice Alito's approach, by contrast, if the government uses non-trespassory electronic means to gather personal information, then it will qualify as a search after 28 days, but it will not qualify as a search if it occurs for a few minutes, and it may or may not qualify at various intervals in between.  As Justice Scalia highlights in his opinion for the Court, this offers little guidance.

One response to this argument is that in the grey area, police may always seek a warrant to be on the safe side, and the incentive to do so can help guard privacy more effectively than clear but narrower guidelines connected to increasingly irrelevant physical boundaries of one's property.

Once we leave the zone of physical trespass, however, our sense of whether or not police have violated the Constitution may sometimes turn on admittedly subjective factors, including our sympathy for the objectives of the police in a particular case.  In his Jones concurrence, for example, Justice Alito suggests that part of what may determine the status of GPS-monitoring as a Fourth Amendment search could be the seriousness of the offense under investigation.  This might seem quite arbitrary.  How could the same activity represent a search if the target offense is drug possession but not if the target offense is homicide?  And if one need not have any suspicion at all, then couldn't all investigations be classified as efforts to uncover the most serious crimes?

But if we think about resource limitations that police departments faced in the past, this offense-level might be defensible.  One reason to distinguish between GPS monitoring and following a vehicle in a police car is the fact that the police cannot dedicate their resources to following everyone's movements on the roads.   Police in the past therefore had to prioritize and would, accordingly, have been unlikely to dedicate the necessary man-power (and woman-power) to following harmless people around for extended periods of time.

There are obvious limits to the protection offered by resource constraints, but we might have trusted in the past that resource constraints would preclude a concentrated effort to follow someone for a long period of time when that someone was not reasonably suspected of doing something very serious (let alone of any criminal activity at all).

This all changes, of course, with the GPS because police could, if they so chose, monitor everyone's car's movements over time without having to spend very much money.  Now we must figure out how to decide when to leave police to their own devices and when to intervene on Fourth Amendment grounds.  One approach would be to say that all GPS monitoring is a search subject to Fourth Amendment limits.  But if the monitoring takes place for a half hour, then it becomes difficult to identify what distinguishes this short-term GPS monitoring from simply following the suspect on the roads for a half hour, the latter of which would not trigger any Fourth Amendment protection.

At the same time, if someone were suspected of a multiple-homicide, then police might in the past have dedicated the necessary resources to following his car around constantly for an extended period of time.  To the extent that such following is not a search (which the Court has held it is not and seems content to continue to so hold), it may be fair to say that what a relatively strapped police department might nonetheless do without triggering Fourth Amendment restrictions could similarly (and lawfully) be done with a GPS device.  Though difficult to administer with any precision, the line between different uses of the GPS, depending on the seriousness of the suspected crime, may make logical sense if we are attempting to replicate the state of police work pre-GPS (and pre-advanced technology more generally).

All this is to say that operating by analogy to the world before electronic surveillance cannot definitively answer many of the questions that the Court will eventually have to answer, and this is a vulnerability that Justice Scalia may continue to highlight.  What nonetheless recommends this approach, however, is that the world of the late Twentieth Century is a far better approximation of today's world than is the world of the Eighteenth Century that Justice Scalia prefers as his point of departure.  As de Tocqueville famously said of democracy, we are sometimes required to choose between a variety of bad options.  In a legal system that relies on analogical reasoning and a Constitution designed in a very different time, the Twentieth Century may, for now, provide the best baseline for a vital Fourth Amendment right to security in our persons, houses, papers, and effects against unreasonable searches and seizures.