Supreme Court Hands Down Narrow Decision in GPS Tracking Case

Senate Judiciary Committee Chairman Patrick Leahy, D-Vt., called the decision “a victory for privacy rights and for civil liberties in the digital age.” But the court’s decision also makes clear that Congress must update the Electronic Communications Privacy Act, Leahy said. “The Court’s determination that the government must obtain a search warrant before attaching a GPS device to a suspect’s car to monitor that suspect’s location highlights the many new privacy threats posed by new technologies and the pressing need to update our federal privacy laws,” he said.

The case also has implications for wireless carriers. The Center for Democracy & Technology said the majority opinion held that a warrant would have been required under the facts of this case even if the government tracking did not involve planting a GPS device. “Cell phone triangulation can be just as precise as GPS,” said Gregory Nojeim, director of CDT’s Project on Freedom, Security and Technology. “Congress should build on this opinion by writing a statute that draws a bright line requiring the government, except in emergencies, to get a warrant before turning your cell phone into a tracking device."

D.C. nightclub owner Antoine Jones challenged his conviction on cocaine trafficking charges on the grounds that some of the information collected violated 4th Amendment protections against unreasonable search and seizure. Police attached a GPS tracking device to his Jeep and, over 28 days, tracked the vehicle’s location, which was transmitted by a cellphone to a government computer. The government collected more than 2,000 pages of data over a four-week period.

The U.S. Court of Appeals for the D.C. Circuit overturned the conviction, concluding that admission of the GPS evidence violated the Fourth Amendment. The high court agreed, though justices disagreed on the rationale for the decision.

Justice Antonin Scalia, writing for the majority, said the case was clear cut. “The government’s physical intrusion on the Jeep for the purpose of obtaining information constitutes a search,” he wrote. “It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ’search’ within the meaning of the Fourth Amendment when it was adopted.”

The Fourth Amendment provides in relevant part “that ‘[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.’ It is beyond dispute that a vehicle is an ‘effect’ as that term is used in the Amendment.” Scalia was joined by Chief Justice John Roberts, and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor.

The four other justices joined a concurrence by Justice Samuel Alito, which supported the ruling, but differed on the logic. Alito said the majority decision goes wrong in not exploring how attaching a GPS device to a vehicle relates to a prohibition against unreasonable search and seizure. “I would analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove,” he wrote.

Sotomayor, in a second concurrence, asked whether Fourth Amendment case law will prove able to keep up with the realities of the digital world. “People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the email addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers,” she wrote. “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

TechFreedom said Scalia’s narrow decision leaves many electronic privacy issues unsettled. “This was an easy case: law enforcement plainly trespassed on private property protected by the Fourth Amendment,” TechFreedom said. “But as the majority notes, today’s holding is only the bare minimum of the Constitution’s protections. The harder question awaits the Court: When does purely electronic surveillance -- without physical trespass -- violate the Fourth Amendment?” At the very least the Supreme Court should take up the “third party” doctrine “invented by lower courts, which denies us protection for information we share with trusted third parties like ‘cloud’ services that host our email, photos, and documents,” Tech Freedom said.

"We regret that the Court’s majority declined to consider the question of whether pervasive electronic tracking requires a warrant even if there is no physical intrusion by the government in installing the device,” said Virginia Sloan, president of The Constitution Project. “However, the majority opinion explicitly left that question open, and we will continue to urge the courts and Congress that a warrant must be required in that context as well.” Sloan said questions regarding cellphone tracking remain unanswered by Tuesday’s decision. “Certainly, the majority opinion doesn’t go that far,” she said.