January 23, 2012
The Supreme Court today issued an opinion in the case of United States v. Jones, concerning whether the police needed a warrant before they placed a GPS tracking device on the underside of a suspect’s car. In a unanimous decision, the Court upheld the DC Circuit’s opinion holding that the police should have had a valid warrant, but gave a different rationale.
CCIA is glad to see the Court uphold the important idea of location privacy, however we would rather have seen the majority opinion deal with the inherent questions of location tracking, rather than the particulars of physical trespass. We are happy to see, however, that at least five of the Justices were interested in taking a broader view, and found at least some privacy right in locational data, regardless of how it was collected.
Justice Scalia, writing for the court, based his rationale entirely on the fact of a physical trespass. Police were required to physically place the GPS device on the car itself before it could track the defendant, and that trespass, held the court, created a search under the Fourth Amendment which must have an accompanying warrant. The problem with this narrow argument is that it does not answer the broader question. GPS device tracking is an investigatory technique that is already falling by the wayside. Tracking of cell phones is becoming much more common and carries with it no requirement for the police to trespass to begin the tracking.
For that reason, we are encouraged to see a majority of the court embrace a broader standard. Justice Alito, writing for himself along with Justices Ginsburg, Bryer, and Kagan, argued convincingly that there is a Fourth Amendment privacy interest in location information, in at least some circumstances. This is the right approach, although a bright line test that included all electronically enhanced location tracking would be a more easily workable solution. Justice Sotomayor joined Justice Scalia’s opinion for the majority, but also wrote separately to say that she also agreed with the rationale outlined by Justice Alito.
We hope the lower courts will take this into consideration and begin expecting warrants even in cases where location tracking is done without physical trespass. At the same time, Congress is in a perfect situation to expand on this decision. There is now a baseline of protection, but the legislature should step up and fill in the details.