November 9, 2011
The Supreme Court heard oral arguments yesterday in the case of United States v. Jones, which questions whether the police must have a valid warrant in order to place a GPS tracking device on a person’s car and track their movements all day every day for a month. The government argues that they should not, but we believe the judicial oversight of a probable cause warrant is essential to control against abuses of modern technology that have the potential to reveal enormous amounts of information about us all.
The pertinent facts in this case are that Jones was suspected by police of being involved in dealing cocaine. Police had enough evidence to constitute probable cause, and applied for and were granted a warrant to track Jones’ car with a GPS device.
If the police had followed the terms of the warrant granted, there would be no case here, but in a couple of different ways they violated those terms, thereby invalidating the warrant. At his trial, Jones asked to have the evidence gained from the GPS tracking excluded from evidence, and the government argued that even though they had obtained the warrant themselves, a warrant was not actually required in order to conduct this type of surveillance and therefore the evidence should not be excluded.
The question went up before the DC Circuit Court of Appeals, who sided with Jones in deciding that this type of surveillance, at least over a long period of time as was the case here, constituted a search and therefore required a valid warrant. The government appealed the case to the Supreme Court.
It has long been the law that the act of police following a suspect on the public streets did not rise to the level of a search that would require a warrant under the Fourth Amendment because the suspect’s travels in the open are observable by everyone and therefore are not deserving of protection. This has been one of the government’s major claims in this case as well. Our conceptions of what is appropriate government surveillance must change in the GPS age however.
Tagging a car with a GPS unit gives even more detailed information about the location of the vehicle than a tailing officer could hope to achieve. It tracks the subject to within yards, keeps unfailingly precise records, is inexpensive, doesn’t get distracted, and never needs to eat, sleep, use the bathroom, or get paid overtime. More concerning is the fact that a police force could distribute hundreds or even thousands of them amongst the population, and monitor them all from a laptop while watching a Sunday football game.
In addition, the sheer volume of data about a person that can be gathered through long-term round-the-clock surveillance made possible by GPS is incredible. As Judge Ginsburg wrote in the DC Circuit’s opinion [link:https://www.eff.org/files/filenode/US_v_Jones/maynard_decision.pdf] : “A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, as associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”
The advent of geolocation tools such as GPS tracking devices and cell-site location data is a massive boon for the investigation of crime; one that must be tempered by the oversight of the warrant process. We hope that the Supreme Court will agree and affirm the DC Circuit’s opinion.