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." - --- MAP posted-by: Jay Bergstrom