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The GPS Case and the Future of the Darkness on the Edge of Town

Presidential election years always have the potential to define the future. Political polarization remains at a high level as 2011 winds down and the presidential contest begins in earnest. And, if the recent past is an indicator, the nation’s gridlocked political process is not likely to produce significant change. The same may not be true for the judicial process. The Supreme Court now has under consideration a case that may fundamentally define the nature and quality of life in America for decades to come.¹ 

In United States v. Jones, the Supreme Court will decide whether law enforcement may conduct 24/7 GPS surveillance without probable cause, without judicial oversight, and without any spatial or temporal limitation. Simply put, this may be the most important privacy decision since the Supreme Court decided Katz,² and given the inexorable march of technology, perhaps the most important privacy case ever.

Context is important. The case involves the warrantless placement of a tiny device on a person’s car that enables police to monitor its whereabouts continuously. It is neither limited by distance nor time, and the data is continuously aggregated, so that it may be accessed at any time. Furthermore, there is no mechanism that stops the device from recording locational data when the car enters private property, such as a private garage. In Jones, the data was aggregated for four weeks. Other cases have involved longer periods of time, and greater distances.³ 

As NACDL noted in its amicus brief, “[e]ven short term GPS data collection, especially when combined with publicly available information, e.g., Google Maps, htttp://maps.google.com, can reveal private associational relationships based on whom an individual visits. …”⁴ Law enforcement’s ability to aggregate personal data by affixing a GPS device to a car is primitive compared to other surveillance technologies that are ready available such as using a person’s cell phone to continuously track the person’s location, recording and storing cell phone call and text data,⁵ or obtaining access to email.⁶ Thus far, the Supreme Court has yet to determine whether any of this is constitutionally protected. This is the reason the Jones case is so important. If the Fourth Amendment does not evolve to embrace technological advances, it will atrophy, and its demise will inevitably gut fundamental First Amendment protections as well.

There are many reasons why people may sometimes seek solace in what a songwriter famously described as “the darkness on the edge of town.”⁷ They do not necessarily do so for bad purposes, let along illegal ones. They do so for myriad reasons that define human individuality. Perhaps it is someone who was brought up in a certain faith and wants to explore the teachings of another religion. Maybe it is someone who privately wants to obtain counseling or treatment for illness. It could be someone — whose family has long associated with a particular party — who wants to sample a different political perspective. Possibly it is an individual who wants to anonymously perform some charitable act. Or yes, maybe someone wants to visit a secret lover. The ability to do any of these things defines the human spirit.

If there was any doubt about the stakes in the case, it was silenced at the oral argument in November. Questions put to the government’s attorney evinced both a deep concern about the ramifications of the government’s assertion that GPS tracking is not subject to constitutional constraint, and a keen recognition of the ramifications of the case for privacy as we know it. At least as these concerns were expressed during the argument, they did not appear to reflect any preconceived ideological assessment of the Court:⁸ 

Chief Justice Roberts

You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory? [emphasis added to reflect that when he used the word “our,” the Chief Justice was referring to the members of the Court].

So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?⁹ 

Justice Alito

But with computers, it’s now so simple to amass an enormous amount of information about people that consists of things that could have been observed in the streets, information that was made available to the public.

I don’t have much doubt that in the near future it will be probable — I think it’s possible now in many instances — for law enforcement to monitor people’s movements on public streets without committing a technical trespass.

So how do we deal with this? Do we just say, well, nothing is changed, so that all the information that people expose to the public — is fair game? There is no search and seizure when that is obtained, because there isn’t a reasonable expectation of privacy? But isn’t there a real change in this regard?

Justice Breyer

[I]f 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. And the difference between the monitoring and what happened in the past is memories are fallible, computers aren’t.

***

So if you win, you suddenly produce what sounds like 1984 from their brief. I understand they [referring to the other party] have an interest in perhaps dramatizing that, maybe overly. But it still sounds like it. And so what protection is there, if any, once we accept your view of the case, from this slight futuristic scenario that’s just been painted, and is done more so in their briefs?

Justice Sotomayor

Your theory is so long as what is being monitored is the movement of a person, they have no reasonable expectation that their possessions will not be used by you. That’s really the bottom line. To track them, invade their sense of integrity in their choices about who they want to see or use their things. That’s really the argument you’re making.

Chief Justice Roberts

Your argument is, it doesn’t depend on how much suspicion you have, it doesn’t depend on how urgent it is. Your argument is, you can do it, period. You don’t have to give a reason. It doesn’t have to be limited in any way, right?

Chief Justice Roberts

Well, you’re talking about the difference between seeing the little tile and seeing a mosaic. One gives you information the other doesn’t.

These questions and observations, especially the last one by Chief Justice Roberts, really hone in on what is at stake in this case. It may be that when people take a walk down the block they do not intend that act to be private. But when technology makes it possible for the government to track and record every walk on every block, it is a whole different story. As Justice Breyer suggested, that really is the Orwellian scenario portrayed in 1984.¹⁰ 

No one would ever suggest that questions at an oral argument portend the outcome. But sometime before the end of June 2012, we will know a great deal about what our lives will be like. If the Court interprets the Constitution to preserve its relevance in the face of this technological advance, we can all breathe a sigh of relief.

If not, for those who think that privacy is essential nourishment for the human spirit, that there is virtue in having the ability to “cut it loose or let it drag ‘em down, where no one asks any questions or looks too long in your face in the darkness on the edge of town,”¹¹ we will have the fight of our lives on our hands. It will be a fight to reclaim a core aspect of liberty that America’s founders never could have imagined would be at risk.

Notes

1. United States v. Jones, No. 10-1259 (oral argument Nov. 8, 2011).
2. United States v. Katz , 389 U.S. 347 (1967) (holding that the Fourth Amendment protection against unreasonable searches and seizures requires the police to obtain a search warrant in order to wiretap a public pay phone; “the Fourth Amendment protects people, not places”).
3. See People v. Weaver, 12 N.Y.3d 433, 436, 909 N.E.2d 1195, 882 N.Y.S.2d 357 (N.Y. 2009) (“The device remained in place for 65 days, constantly monitoring the position of the van.”), and State v. Johnson, 190 Ohio App.3d 750 (Ohio App. 12 Dist., 2010) (monitoring across three states).
4. NACDL Brief at 10; www.nacdl.org/ajonesamicibrief.
5. http://money.cnn.com/2011/12/01/technology/carrier_iq/index.htm?hpt=hp_c1.
6. Within the past year NACDL adopted a policy that calls for robust constitutional protection for personal data that is physically maintained by third-party service providers, such as cell phone companies and email servers.
7. Bruce Springsteen, Darkness on the Edge of Town (Columbia Records 1978).
8. The complete and searchable oral argument transcript is available at http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf.
9. As one of those present for this oral argument, it was my distinct impression that Chief Justice Roberts was not suggesting that the members of the Court are some specially protected class. Rather, he was underscoring the import of the government’s bold assertion that everyone at all times may be subjected to this unlimited government monitoring, without any prior showing of probable cause or suspicion.
10. George Orwell, 1984 (1949).
11. See supra note 7.

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