GPS TRACKING REQUIRES WARRANT, HIGH COURT SAYS

Justices Stress Privacy in Ruling on Police Use of Digital Technology
to Monitor People

The Supreme Court confronted for the first time the government's
growing use of digital technology to monitor Americans and ruled
strongly in favor of privacy.

The court said the Constitution generally barred the police from
tracking an individual with a GPS device attached to a car unless
they were issued a warrant from a judge in advance. But the ruling
could limit a host of devices including surveillance cameras and
cellphone tracking, legal experts said.

"I would guess every U.S. attorney's office in the country will be
having a meeting to sort out what this means for their ongoing
investigations," said Lior Strahilevitz, a University of Chicago
expert on privacy and technology.

Even the justices who most often side with prosecutors rejected the
government's view that Americans driving on public streets have
waived their right to privacy and can be tracked and monitored at
will. At least five justices appeared inclined, in the future, to go
considerably beyond the physical intrusion involved in putting a GPS
device on a car and rule that almost any long-term monitoring with a
technological device could violate an individual's right to privacy.

Until now, prosecutors and police have believed as long as they were
tracking a person who was out in public, they could use GPS devices,
cellphone tracking, facial recognition cameras or computer data
mining to gather a dossier on an individual without a search warrant.
A majority of the justices aggressively rejected that idea Monday.

Although the justices agreed on the outcome, they quarreled over how
to approach the issue and how far to go.

Five justices, led by Antonin Scalia, said the police violated the
4th Amendment's ban on unreasonable searches when they attached the
device to a vehicle's bumper and monitored its movements.

Justice Samuel A. Alito Jr., whose opinion was joined by three
others, cited "dramatic technological change" that has made it
"relatively easy and cheap" for agents to secretly monitor people and
gather huge amounts of information. Justice Sonia Sotomayor agreed,
saying "awareness that the government may be watching chills" freedom.

None of the opinions set a strict limit on searches, but they
signaled the court was determined to limit officials' power to
monitor individuals, at least when there is no "probable cause" to
believe the individuals have committed a crime.

The case before the court arose when Antoine Jones was charged with
running a drug-dealing operation in the Washington area, based in
part on data gathered from tracking his Jeep.

By a 9-0 vote, the justices ruled it was unconstitutional for the
police to attach a small GPS device to his bumper and track his car
for a month. The tracking data helped convict Jones of running a
drug-dealing operation.

It is rare when a drug criminal wins in the conservative-leaning high
court, but the GPS case concerned whether the modern state had
unlimited power to track and monitor its citizens, evoking the
specter of George Orwell's "1984."

"Society's expectation has been that law enforcement agents and
others would not - and indeed, in the main, simply could not -
secretly monitor and catalog every single movement of an individual's
car for a very long period," Alito wrote, adding that such a search
"surely crossed" the constitutional line. Justices Ruth Bader
Ginsburg, Stephen G. Breyer and Elena Kagan agreed with Alito.

Sotomayor joined Scalia's majority opinion, but in a concurring
opinion she made clear that she also agreed with much of Alito's
broader view that the court must limit the government's use of
tracking technology.

Scalia's view protects the "constitutional minimum" that the
government may not trespass on private property, she wrote. But she
said these devices could "make available at a relatively low cost
such a substantial quantum of intimate information about any person
who the government, in its unfettered discretion, chooses to track."
Moreover, she said, "the government can store such records and
efficiently mine them for information years into the future." The
government cannot be free to use "a tool so amenable to misuse," she
said, particularly in light of the 4th Amendment's aim "to curb
arbitrary exercises of police power."

Scalia did not foreclose a future decision that tracking through
"electronic means" is an "unconstitutional invasion of privacy," but
said there was "no reason for rushing forward" to resolve that issue
now. Chief Justice John G. Roberts Jr.and Justices Anthony M.
Kennedyand Clarence Thomas also joined the opinion.

The ruling in U.S. vs. Jones left many questions unanswered. Alito
and Sotomayor did not say when electronic tracking goes too far.

Privacy experts hailed the opinion as a welcome surprise and a good
portent for the future.

It is "a landmark ruling in applying the 4th Amendment's protection
to advances in surveillance technology," said Washington attorney
Andrew Pincus. It is also "a significant rebuke to the government,"
which had argued that no privacy right was at stake.

Gregory Nojeim of the Center for Democracy & Technology agreed,
saying the court "made it clear it would not allow advancing
technology to erode the constitutional right of privacy." The
decision may limit police from using cellphones to track people, he
said, because "cellphone triangulation can be just as precise as GPS."

Strahilevitz said the court's opinion was most important for its
rethinking of the right to privacy when balanced against public surveillance.

"Before today, if you asked whether the 4th Amendment puts some limit
on the government's use of facial recognition cameras in the Chicago
Loop or at the Los Angeles airport, you would say no. You had no
expectation of privacy. After today, it is not so clear. The court
said there is an expectation of privacy in public, and they see a
danger in using technology to compile dossiers on persons."

The case also featured an unusual clash between Scalia and Alito over
how to interpret the Constitution. Scalia relied on its original
history and said the 4th Amendment was about protecting private
property from official searches. Alito derided his focus on "18th
century tort law" and said the court needed to protect citizens
against "unreasonable searches" more broadly.

Scalia's opinion, if strictly followed, could limit the reach of the
4th Amendment, but Sotomayor agreed with Alito's view that it also
extended to protecting privacy broadly.