Pubdate: Mon, 30 Jan 2012
Source: Dallas Morning News (TX)
Copyright: 2012 The Dallas Morning News, Inc.
Contact: http://www.dallasnews.com/cgi-bin/lettertoed.cgi
Website: http://www.dallasnews.com/
Details: http://www.mapinc.org/media/117

COURT'S GPS RULING WAS CORRECT BUT INCOMPLETE

Some Supreme Court decisions hit like bombs, taking casualties and 
creating vibrations for years. Citizens United was one; the expected 
ruling this year on the Obama administration's health care reform 
should be another.

Others creep past on cat's paws, content to curl up and wait for 
someone to come by and rub their belly.

Last week's U.S. vs. Jones decision is a creeper. While billed as the 
most important Fourth Amendment test in a decade, it mostly came and 
went fairly quietly, with legal analysts left to sort out what 
happened and what it meant.

Antoine Jones, a Washington nightclub owner, was suspected of drug 
trafficking. A joint FBI-local police investigation led officers to 
place a GPS device on his wife's car without a valid warrant. Jones, 
followed 24 hours a day for four weeks, was arrested and convicted in 
January 2008 and sentenced to life in prison.

His appeal, citing violation of his Fourth Amendment right against 
unreasonable search and seizure, is what reached the Supreme Court.

The justices' 9-0 ruling that Jones' rights indeed had been violated 
is the right one - but not the entire story. Justice Antonin Scalia 
narrowed the scope of his opinion to the improper search, the placing 
of the GPS device on property. The court rejected the government's 
assertion that "search" did not apply because Jones forfeited his 
"reasonable expectation of privacy" when he drove on public streets.

As far as it goes, obviously correct. We wish the court had gone all 
the way to the end of the question, as separate concurrences written 
by Samuel Alito and Sonia Sotomayor attempted. They sought to bring 
the ruling into contemporary focus; Sotomayor, in particular, wanted 
the court to tackle the question of privacy: "Physical intrusion is 
now unnecessary to many forms of surveillance."

In other words, the acquisition and storage of GPS data is far more 
ubiquitous than even in 2005, when the Jones case began, and 
certainly more prevalent than could have been imagined when the 
Fourth Amendment was written.

Consider the GPS-enabled smartphone resting this very moment in your 
pocket or purse. Your TollTag. Every swipe of your ATM or credit 
card. The dozen or so visits you make each day to sites like Google.

U.S. vs. Jones settles only a small part of the question. Yes, if a 
law enforcement agency wants to track your movements via GPS, it 
would be wise to make its case to a judge, who could then issue an 
authorizing warrant. Or not, depending on the quality of the 
government's probable cause.

More important for the next such case to reach the U.S. Supreme Court 
- - as one almost certainly will - is what limitations the government 
should face to access this vast trove of data piling up on a server 
somewhere every moment of every day. This remains substantially unanswered.

Three views within one

The court was unanimous in its decision that the government violated 
the Fourth Amendment when it attached a GPS device without a valid 
warrant. But it split on the reasoning.

MAJORITY OPINION (Scalia writing for five justices): "The government 
physically occupied private property for the purpose of obtaining 
information. We have no doubt that such a physical intrusion would 
have been considered a 'search' within the meaning of the Fourth 
Amendment when it was adopted."

CONCURRENCE (Alito writing for four justices): "The use of 
longer-term GPS monitoring in investigations of most offenses 
impinges on expectations of privacy."

CONCURRENCE (Sotomayor writing for herself): "I would ask whether 
people reasonably expect that their movements will be recorded and 
aggregated in a manner that enables the government to ascertain, more 
or less at will, their political and religious beliefs, sexual 
habits, and so on."
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MAP posted-by: Jay Bergstrom