Huge 4th Amendment Win for Privacy: Supreme Court Requires Warrant for GPS Tracking

We the People and privacy won while law enforcement suffered a big legal loss on GPS tracking and electronic surveillance, the place where privacy, security and technology intersect and sometimes crash and burn. But like some kind of wickedly twisted two-step, wham bam courtesy of Uncle Sam, a Fifth Amendment privacy loss shadow falls over biggest Fourth Amendment and privacy victory in the digital age.

On Monday, law enforcement suffered a big legal loss on electronic surveillance, the place where privacy, security and technology intersect and sometimes crash and burn. In the biggest Fourth Amendment and privacy case in the digital age, the U.S. Supreme Court [PDF] unanimously agreed that police needed probable-cause and a search warrant before planting a GPS tracking device to an American's vehicle. Since GPS tracking evidence helped to convict drug dealer Antoine Jones, his life sentence was tossed out.

It's very important to know what the ruling said about a reasonable expectation of privacy. All of the Supreme Court justices agreed that the warrantless GPS tracking violated Constitutional rights and the Fourth Amendment that protects citizens from "unreasonable searches and seizures" and protects a person's "reasonable expectation of privacy." The reasoning behind the ruling was split 5 to 4.

Justice Scalia wrote the opinion for the five justice majority and did not say that a warrant was always necessary. Traditional surveillance required law enforcement to physically trespass on a person's property, but in this case "achieving the same result through electronic means, without an accompany­ing trespass, is an unconstitutional invasion of privacy." He added, there was "no reason for rushing forward" to resolve if other non-classic trespass issues involving electronic surveillance would also be unconstitutional.

Justice Alito faulted the Court's reasoning to "disregard what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation)." She suggested that if electronic monitoring can be done without technical trespass, then if the "Federal Government required or persuaded auto manufacturers to include a GPS tracking device in every car-the Court's theory would provide no protection. "

Justice Alito wrote, "The Court's reliance on the law of trespass will present particularly vexing problems in cases involving surveillance that is carried out by making electronic, as opposed to physical, contact with the item to be tracked. For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels?" New technology "may provide increased convenience or security at the expense of privacy" but it can change what is or is not a reasonable expectation of privacy. Alito mentioned closed-circuit TV video monitoring, toll road collection systems, and cars equipped to provide roadside assistance or tracking if the vehicle is stolen.

Alito wrote:

Perhaps most significant, cell phones and other wireless devices now permit wireless carriers to track and record the location of users-and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States. For older phones, the accuracy of the location information depends on the den­sity of the tower network, but new "smart phones," which are equipped with a GPS device, permit more precise tracking. For example, when a user activates the GPS on such a phone, a provider is able to monitor the phone's location and speed of movement and can then report back real-time traffic conditions after combining ("crowdsourcing") the speed of all such phones on any particular road. Similarly, phone-location-tracking services are offered as "social" tools, allowing consumers to find (or to avoid)others who enroll in these services. The availability and use of these and other new devices will continue to shape the average person's expectations about the privacy of his or her daily movements.

While it may be up to Congress to enact legislation to regulate GPS tracking and other electronic surveillance, Justice Sotomayor made a strong case for why we need to update our Fourth Amendment laws to protect privacy in this digital age, warning that if the Fourth Amendment fails to protect our privacy, then it may also result in stomping our other freedoms. She wrote, "With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle track­ing devices or GPS-enabled smartphones." She added that even short-term GPS surveillance and "monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations....The Government can store such records and efficiently mine them for information years into the future....Awareness that the Government may be watching chills associational and expressive freedoms. And the Govern­ment's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse."

"Privacy is not a discrete commodity, possessed absolutely or not at all." In this digital age, people reveal much to third parties and voluntarily revealing information to the public or other entity for a "limited purpose" and specific reason does not kick away our Fourth Amendment protection. "People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers," wrote Sotomayor. "I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy."

Gregory Nojeim, Director of CDT's Project on Freedom, Security and Technology, said the unanimous Supreme Court ruling "made it clear that it will not allow advancing technology to erode the Constitutional right of privacy."

Let's focus on this great Fourth Amendment win for privacy, but like some kind of wicked two-step, wham bam courtesy of Uncle Sam, there is a big Fifth Amendment privacy loss shadow on the victory. A federal judge in Colorado ruled that the Fifth Amendment, which guarantees you need not witness against yourself, does not protect people's encrypted computers or your encryption key. CNet reported, "American citizens can be ordered to decrypt their PGP-scrambled hard drives for police to peruse for incriminating files," or "face the consequences including contempt of court."

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