USE OF GPS TO MONITOR SUSPECTS DEBATED AT HIGH COURT

WASHINGTON--Supreme Court justices wrestled with the bounds of personal
privacy in the digital world Tuesday at arguments over whether police
needed a warrant before secretly attaching a GPS tracking device to a
suspect's car.

The suspect's lawyer argued the police technique represented a classic
violation of a person's constitutional right against unreasonable
searches and seizures. The government said the device was simply a
more efficient way to follow a suspicious person's movements in public
places, which normally doesn't require a warrant.

"If you win this case, then there is nothing to prevent the police or
the government from monitoring 24 hours a day the public movement of
every citizen of the United States," Justice Stephen Breyer told the
government's lawyer, Deputy Solicitor General Michael Dreeben.

"The court should address the so-called '1984' scenarios if they come
to pass rather than using this case" to do so, replied Mr. Dreeben,
who emphasized that the suspect was an alleged drug dealer at the
center of a joint city-federal investigation.

"It's not a massive, universal use of an investigative technique," Mr.
Dreeben said. He added that the number of GPS tracking devices the
Federal Bureau of Investigation installs is "in the low thousands annually."

The case came before the justices after a lower court threw out the
conviction of suspected drug dealer Antoine Jones, holding that the
data produced by the GPS device--tracking his car's every movement over
four weeks, 24 hours a day--was different in kind from what anyone
might observe with the naked eye.

The Fourth Amendment prohibits "unreasonable searches and seizures"
without a warrant, which police can obtain only by demonstrating
probable cause to a magistrate.

In a 1967 opinion, Justice John Marshall Harlan II formulated a Fourth
Amendment test the court has followed since. He wrote the warrant
requirement applies when an individual has a "subjective" expectation
of privacy which "society is prepared to recognize as
reasonable."

In the current case, the government maintains that installing a GPS
tracker isn't a search, because it only records movements that would
have been observable in the public streets; it's not a seizure,
because the trespass to install the tracker was trivial.

Even if it was a search or seizure, the government argues, it would be
reasonable, because people can't reasonably expect their movements in
the public streets to be private.

Mr. Dreeben said that under the government's theory, no constitutional
provision could stop the police from secretly attaching tracking
devices for any reason, or for no reason at all, to anyone's
car--including the justices of the Supreme Court.

"The justices of this court when driving on public roadways have no
greater expectation" of privacy than anyone else, Mr. Dreeben said.

Justice Sonia Sotomayor suggested the government was seeking powers
like those that so incensed the American colonists against the British
crown.

"What motivated the Fourth Amendment historically was the disapproval,
the outrage, that our Founding Fathers experienced with general
warrants that permitted police indiscriminately to investigate just on
the basis of suspicion, not probable cause, and to invade every
possession that the individual had in search of a crime."

Several justices challenged Mr. Jones's lawyer, Stephen Leckar, on
whether Mr. Jones had any reasonable privacy expectation in his movements.

"I don't know what society expects," said Justice Samuel Alito.
"Technology is changing people's expectations of privacy." In a
decade, perhaps, "90% of the population will be using social
networking sites and they will have on average 500 friends and they
will have allowed their friends to monitor their location 24 hours a
day, 365 days a year, through the use of their cellphones. What would
the expectation of privacy be then?"

Justice Elena Kagan followed up that point. "Suppose that in the
future all cars are going to have GPS tracking systems and the police
could essentially hack into such a system without committing the
trespass. Would the constitutional issue we face be any different?"She
observed that many American cities already are covered with speed
cameras and other surveillance devices, and asked whether that was any
different from police affixing a GPS device.

Mr. Leckar said that while drivers understood they were monitored by
an occasional traffic camera, "society does not expect or view it as
reasonable to have the equivalent of a million video cameras following
you everywhere you go."

A decision in the case, U.S. v. Jones, is expected by
July.

Mr. Leckar also offered a property-rights argument, saying the
government was effectively seizing Mr. Jones's Jeep Grand Cherokee
when it affixed the tracker. But the justices appeared to have little
interest in that line of reasoning.