The Supreme Court and Privacy Rights in the Digital Age

Tomorrow, the Supreme Court will hear oral argument in United States v. Jones, widely viewed as a one of the most important Fourth Amendment cases in decades and a bellwether for the Court’s approach to privacy rights in the digital age. The question before the Court is whether the Fourth Amendment requires law enforcement to obtain a warrant before secretly planting a GPS device on an individual’s car and tracking his every move for nearly a month.

How the Court answers this question will have implications for an increasingly prevalent array of location-aware technology, from vehicles equipped with satellite navigation systems to smart phones and tablet computers that store or transmit location information. Whether the government can access such information without a warrant is likely to turn on the Court’s reasoning in Jones.

One approach, urged by the government, would be to extend the logic of a 1983 case called United States v. Knotts, in which the Court held that “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.” Knotts, however, involved only the visual surveillance of a suspect with the aid of a “beeper”-style homing device (think No Country for Old Men) to ensure that officers didn’t lose the tail. Moreover, the police did not actively plant the beeper (it was inside a drum of chloroform that the suspect loaded into his car) and they limited its use to a single trip.

By contrast, the kind of electronic surveillance in Jones has a decidedly more Orwellian feel, as judges around the country have noted. Not only did federal agents have no need for visual surveillance once they secretly affixed a GPS tracker to the suspect’s vehicle, they then proceeded to monitor his every move, 24 hours per day, for 28 days.

Holding that such tracking is unconstitutional absent a valid warrant, the D.C. Circuit Court of Appeals recognized that prolonged surveillance reveals qualitatively different information than does short-term surveillance, including whether a person “is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups ― and not just one such fact about a person, but all such facts.” The court then distinguished Knotts by reasoning that unlike one’s movements on a discrete trip, “[a] reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain ― ‘disconnected and anonymous.’”

The Brennan Center filed an amicus brief urging the Supreme Court to affirm the D.C. Circuit decision. The brief was joined by the National Association of Criminal Defense Lawyers, the First Amendment Lawyers Association, the District of Columbia Association of Criminal Defense Lawyers, the New York State Association of Criminal Defense Lawyers, and the Ohio Association of Criminal Defense Lawyers. Our brief argues that surreptitious GPS tracking places a significant burden on the First Amendment right to association by revealing lawful and private associational relationships and activities. It contrasts this heavy burden on First and Fourth Amendment rights with streamlined warrant application procedures that permit law enforcement in the vast majority of states to apply for warrants electronically and remotely, thereby minimizing the risk of significant investigative delay.

In fact, the agents in Jones did obtain a warrant, but inexplicably waited until after it had expired to install the GPS tracker. It is therefore difficult to seriously credit the government’s claim that a warrant requirement would unduly hinder law enforcement investigations.

Whether the Supreme Court agrees will not only determine how the Fourth Amendment applies to GPS technology, it will also set the stage for future decisions about privacy and the limits of government in the digital age. The Brennan Center hopes the Supreme Court will join the D.C. Circuit and a growing chorus of states in recognizing that when the government engages in the kind of relentless, 24-hour-per-day location tracking at issue in Jones, it generates an intimate picture of an individual’s private life that reveals far more than the sum of short-term surveillance on discrete trips. Law enforcement may have a compelling need for such information, but given the stakes, it should not be too much to ask that they communicate that need to a judge and get a warrant.