Pubdate: Wed, 09 Nov 2011 Source: Wall Street Journal (US) Copyright: 2011 Dow Jones & Company, Inc. Contact: http://www.wsj.com/ Details: http://www.mapinc.org/media/487 Author: Jess Bravin USE OF GPS TO MONITOR SUSPECTS DEBATED AT HIGH COURT WASHINGTON--Supreme Court justices wrestled with the bounds of personal privacy in the digital world Tuesday at arguments over whether police needed a warrant before secretly attaching a GPS tracking device to a suspect's car. The suspect's lawyer argued the police technique represented a classic violation of a person's constitutional right against unreasonable searches and seizures. The government said the device was simply a more efficient way to follow a suspicious person's movements in public places, which normally doesn't require a warrant. "If 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," Justice Stephen Breyer told the government's lawyer, Deputy Solicitor General Michael Dreeben. "The court should address the so-called '1984' scenarios if they come to pass rather than using this case" to do so, replied Mr. Dreeben, who emphasized that the suspect was an alleged drug dealer at the center of a joint city-federal investigation. "It's not a massive, universal use of an investigative technique," Mr. Dreeben said. He added that the number of GPS tracking devices the Federal Bureau of Investigation installs is "in the low thousands annually." The case came before the justices after a lower court threw out the conviction of suspected drug dealer Antoine Jones, holding that the data produced by the GPS device--tracking his car's every movement over four weeks, 24 hours a day--was different in kind from what anyone might observe with the naked eye. The Fourth Amendment prohibits "unreasonable searches and seizures" without a warrant, which police can obtain only by demonstrating probable cause to a magistrate. In a 1967 opinion, Justice John Marshall Harlan II formulated a Fourth Amendment test the court has followed since. He wrote the warrant requirement applies when an individual has a "subjective" expectation of privacy which "society is prepared to recognize as reasonable." In the current case, the government maintains that installing a GPS tracker isn't a search, because it only records movements that would have been observable in the public streets; it's not a seizure, because the trespass to install the tracker was trivial. Even if it was a search or seizure, the government argues, it would be reasonable, because people can't reasonably expect their movements in the public streets to be private. Mr. Dreeben said that under the government's theory, no constitutional provision could stop the police from secretly attaching tracking devices for any reason, or for no reason at all, to anyone's car--including the justices of the Supreme Court. "The justices of this court when driving on public roadways have no greater expectation" of privacy than anyone else, Mr. Dreeben said. Justice Sonia Sotomayor suggested the government was seeking powers like those that so incensed the American colonists against the British crown. "What motivated the Fourth Amendment historically was the disapproval, the outrage, that our Founding Fathers experienced with general warrants that permitted police indiscriminately to investigate just on the basis of suspicion, not probable cause, and to invade every possession that the individual had in search of a crime." Several justices challenged Mr. Jones's lawyer, Stephen Leckar, on whether Mr. Jones had any reasonable privacy expectation in his movements. "I don't know what society expects," said Justice Samuel Alito. "Technology is changing people's expectations of privacy." In a decade, perhaps, "90% of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cellphones. What would the expectation of privacy be then?" Justice Elena Kagan followed up that point. "Suppose that in the future all cars are going to have GPS tracking systems and the police could essentially hack into such a system without committing the trespass. Would the constitutional issue we face be any different?"She observed that many American cities already are covered with speed cameras and other surveillance devices, and asked whether that was any different from police affixing a GPS device. Mr. Leckar said that while drivers understood they were monitored by an occasional traffic camera, "society does not expect or view it as reasonable to have the equivalent of a million video cameras following you everywhere you go." A decision in the case, U.S. v. Jones, is expected by July. Mr. Leckar also offered a property-rights argument, saying the government was effectively seizing Mr. Jones's Jeep Grand Cherokee when it affixed the tracker. But the justices appeared to have little interest in that line of reasoning. - --- MAP posted-by: Richard R Smith Jr.