Tuesday, January 24, 2012

I Always Feel Like Somebody's Watching Me

There's a significant fourth amendment opinion out yesterday from the United States Supreme Court that is an interesting blend of technology and history.

In United States v. Jones, the Court-you know, what used to be Nine Old Men but is now Six Oldish Men and Three Oldish Ladies-.....where was I? Oh, I remember.

It seems that police in D.C. got a warrant to attach a GPS tracking device to a Jeep Cherokee belonging to Jones' wife, although Jones himself was the exclusive driver. Although the warrant was for the District and it was only for ten days' duration, that didin't bother police operatives who not only attached the device in Maryland eleven days after the warrant was issued, but then proceeded to surveil the vehicle for an additional twenty eight days.

Jones was convicted because-here's the big surprise-the bug led to the discovery of a stash house and a vast amount of cocaine-nearly 100 kilograms of the blow. Jones earned a lifetime stay in a fine federal correctional holiday resort for his trouble.

At trial the court suppressed the information produced by the device that was obtained while the vehicle was parked in Jones' garage, but let the rest of it in because, the court opined, Jones had no reasonable expectation of privacy when the vehicle was being operated on the public highways.

The DC Circuit reversed, holding that evidence obtained by the warrantless use of the device violated the 4th amendment.

The Supreme Court agreed. Although it could have ruled strictly on the issue of the stale warrant, the opinion went further. Scalia opined that there are two separate and distinct bases for concluding that a 4th amendment violation occurs where there is a warrantless search-as this was. Where there is a physical trespass by government, there is a search, as well as where there is an area in which the defendant has a reasonable expectation of privacy.

The Court also noted that electronic signals that are transmitted from onboard devices-OnStar and other GPS enabled devices such as phones and so on-are subject to the traditional reasonable expectation of privacy formulation.

In addition, Justice Sotomayor observes that the data and conclusions about the subject reached from the context of the locational data could chill associational and political freedoms. It may be, she muses, that in the future the protection of the 4th amendment may not be based on secrecy as a prerequisite for privacy.

Justices Alito, Breyer, Ginsburg and Kagan aren't even sure that what occurred was a search-although one might think that the government conceded that, inasmuch as it sought out and obtained a warrant, they treated it as such.

As a practical matter, when considering the use of such a tracking device, strict adherence to the warrant would have obviated the need for the lengthy litigation that this consumed. You can't be faulted for adhering to the terms and conditions of the warrant.