I was at the Supreme Court this morning for the oral argument in United States v. Jones, the GPS case. In this post, I want to blog my reactions to the argument: I’m going to update the post as I go, so general readers can get the important stuff first at the top and then general readers can get the rest down the page.
1) My basic reaction was that the outcome was too close to call. The Justices gave both sides a very hard time, and few Justices tipped their hand. The Justices pushed Michael Dreeben (arguing for the United States) on the consequences of his argument: If the Government was right, they noted, then the government can install a GPS device on all the Justices’ cars and watch them, too, along with everybody else. They pushed Steve Leckar (arguing for Jones) on the difficulty of identifing a clear Fourth Amendment principle to distinguish visual surveillance from GPS surveillance. The votes were hard to count, but if you had to summarize a reaction of the Court as a whole, I would say that the Justices were looking to find a principle to regulate GPS surveillance but unconvinced (at least as of the argument) that there was a legal way to get there without opening up a Pandora’s Box of unsettling lots of long settled practices.
2) The Justice who most clearly showed his cards was Justice Scalia. Justice Scalia made clear that he would overrule Katz v. United States; make common law of trespass the test for what is a search; and say that the installation of the device was a search because it was a technical trespass. Even if Katz can’t be overturned, Scalia indicated, at the very least the common law of trespass should be a floor of Fourth Amendment protection: Katz should be allowed to go beyond the original Fourth Amendment but not erode it. Cf. Kyllo v. United States. At the same time, Justice Scalia made equally clear that he thought the use of the device after installation was not a Fourth Amendment problem. What is invasive and scary isn’t a search, Scalia emphasized, and the kind of line-drawing as to when use of a GPS device should be allowed is quintessentially a legislative question. So Scalia is on board for saying that installation of the device is a search, but no more. (As an aside, it’s not at all clear that the original public meaning of the Fourth Amendment operated on a common law of trespass principle. Warren Court opinions liked to describe pre-Warren Court decisions as adopting such a principle, and that has led many to believe that the Fourth Amendment underwent a transition in the 1960s from protecting property to protecting privacy. But if you go back and read the cases, that narrative — pushed most strongly by justice Brennan in Warden v. Hayden — is plainly inaccurate. The early cases usually rejected common law trespass as a principle, much as post-Katz cases do. More on that in a future post.)
3) Other justices gave a more mixed reaction to Justice Scalia’s idea of regulating the installation of the device as a search under the technical trespass doctrine. Justices Alito and Kagan seemed particularly skeptical. Both pointed out that this solution wouldn’t necessarily work in the long run: If technology advanced and the government created a new surveillance tool that could obtain the same information without a technical trespass, then the government would have the same power as before. Alito and Kagan also both pressed Leckar on whether it would be a search or seizure to attach an inert device to a suspect’s car (that is, a device with no monitoring system). Leckar conceded that this would be a different case, which drew a comment from Justice Kagan that Leckar was really focused on the use of the GPS device, not the installation.
4) Justice Breyer’s reaction was about as far from Scalia’s as you could get. Justice Breyer didn’t buy the technical trespass doctrine, and he wanted to bypass the question of what is a “search” or “seizure” and just ask what is “reasonable.” Breyer seemed to think that the earlier decisions like Karo and Knotts had been about that, as well, which was mistaken: Those cases were primarily about what is a “search,” not when a search is reasonable. (It’s true that the test for what is a search is whether the government conduct violated a “reasonable expectation of privacy,” but that’s a term of art used interchangeably with the phrase “legitimate expectation of privacy” — the word “reasonable” in that term of art is very different from the general balancing test of reasonableness that applies once a search or seizure has been identified.) Anyway, Breyer was therefore looking for some sort of way to say when GPS monitoring was reasonable and desirable, rather than what was a constitutional search or seizure. I don’t think he really found an answer that satisfied him on either side.
5) Justice Sotomayor and Ginsburg were both very worried about the Big Brother implication of using GPS devices: I counted 5 or so references to Orwell’s 1984. At the same time, both were struggling to identify exactly what the constitutional rule was that would regulate GPS monitoring. Merely watching a suspect in a city street was obviously not a search or seizure. Does that change if you switch to video cameras? Lots of cameras? Beepers? GPS devices? Where do you draw the line? Counsel for Jones suggested that the Court could say that this case was a search or seizure but leave open the other cases, but the Justices wanted clearer answers than that. And there was some frustration at the inability to draw constitutional lines from the defendant’s side: At one point Justice Sotomayor responded to one of the defense’s proposed lines by proclaiming, “What an unworkable rule tethered to no principle!”
6) The “mosaic theory” adopted by the D.C. Circuit didn’t seem to go anywhere with the Justices. I think the only Justice who mentioned it during Dreeben’s argument was Chief Justice Roberts. Roberts’ question was straight out of the defense-side briefs, arguing that GPS surveillance over a long period allowed the government to assemble a mosaic, and was much cheaper and easier for the government than the beeper surveillance in Knotts. At the same time, I couldn’t tell if Roberts was asking those questions just to see Dreeben’s response or because he genuinely was sympathetic to the defense side. The mosaic theory came up a bit during Leckar’s argument, but the Justices were mostly very skeptical: As Justice Scalia proclaimed, echoing Judge Sentelle below in his dissent from denial of rehearing en banc, “100 times zero is still zero.” Leckar took the hint and didn’t press the mosaic theory much during his argument.
7) One of the major questionsin the case is how the Justices view the prospect of future statutory regulation. It was clear that a lot of the Justices were deeply worried about the 1984 scenario, and were looking to find a sensible way to regulate GPS surveillance with a constitutional rule if it’s necessary to avoid 1984. Arguing for the government, one of Dreeben’s responses was that these were just the kind of problems that Congress could deal with: If everyone is spooked by the possibility of GPS surveillance, then that is all the more reason for the elected branches to act. It was hard to know exactly what the Justices thought of this: They know they can’t control if Congress acts. If they decide that the Fourth Amendment doesn’t apply because they expect statutory regulation to deal with this, what happens if they are wrong? I tend to think that it’s very likely that Congress would act pretty swiftly to regulate GPS surveillance for the reasons explained in this article, but it’s an question of guessing what the future might look like and I suspect different Justices will look at it differently.
Eric Muller says:
Thanks for the summary, Orin. Very interesting.
November 8, 2011, 12:31 pmAaron says:
I don’t see why looking for evidence of someone committing a crime by watching them in the street can’t be called a search. The watchers are looking for something, after all, so it seems to fit the plain meaning. It’s entirely reasonable of course, and should not require a warrant.
Squaring that with the vast body of case law that doesn’t consider it a fourth-amendment search is trickier, of course.
November 8, 2011, 12:39 pmKazinski says:
This is the kind of case where the justices should let congress act. Clearly there needs to be a solution that respects the privacy we feel we are entitled to, whether or not it is a “reasonable expectation of privacy”, but there doesn’t seem to be a readily available constitutional remedy.
November 8, 2011, 12:45 pmAnderson says:
Wow, great writeup — thanks!
“This is the kind of case where the justices should let congress act.”
(1) IOW, there’s nothing unconstitutional about an officer’s creeping under someone else’s car and attaching a tracking device to it?
(2) What makes you think Congress cares to “act”? It’s only criminals being tracked, right? Law-abiding people never become the object of police scrutiny. Who in Congress wants to be soft on crime?
November 8, 2011, 12:49 pmHasdrubal says:
Doesn’t that lead down the path to near complete irrelevance of the court, though?
If technological progress alone can lead to “[no] readily available constitutional remedy,” aren’t we going to eventually invent our way mostly out of the Constitution? This is a question that rests on advancing technology, but it still applies to fundamental rights. I think the Court would likely be absconding on their responsibility to protect those rights if they passed the ball to Congress just because it involved technology beyond the imagination of the framers.
November 8, 2011, 1:03 pmAnderson says:
Wow, great writeup — thanks!
“This is the kind of case where the justices should let congress act.”
(1) IOW, there’s nothing unconstitutional about an officer’s creeping under someone else’s car and attaching a tracking device to it?
(2) What makes you think Congress cares to “act”? It’s only criminals being tracked, right? Law-abiding people never become the object of police scrutiny. Who in Congress wants to be soft on crime?
November 8, 2011, 1:07 pmMatt says:
Crawling under a vehicle is no more a search than a child going after a lost ball. Placing a GPS device is no more instrusive than leaving a flyer on the car or, as Alito and Kagan suggested, an inert object on the vehicle. There is no “search” that reveals information from any protected area.
As for the tracking itself, nothing more is learned from GPS than could be from physical observation. In fact even less is known, since GPS does not reveal who is driving or who else is in the vehicle. GPS does not reveal where occupants go after the car stops.
November 8, 2011, 1:20 pmAnderson says:
Incidentally, when does the burning-in-effigy of Judge Silberman start today here at the Volokh Conspiracy? :-)
I dunno about an effigy, but the server is likely to melt down.
Just skimmed the op — reads like Charles Fried could’ve written it.
November 8, 2011, 1:32 pmDavid Schwartz says:
100 times zero is still zero, but 1,000,000,000 times too little to worry about is not always too little to worry about.
November 8, 2011, 1:41 pmanon says:
Hasdrubal is exactly correct.
With ANPRs and Cellphone Man in the Middle Cellphone Proxy Towers (STINGRAYS), GPS tracking is obsolete, busted, tired, worn out, yesterday’s privacy invasion.
It’s not needed.
Technology has already bypassed it, and useful idiots like Kerr pave the way for the demolishing of our privacy rights and the 4th Amendment.
November 8, 2011, 1:44 pmSteve says:
Alito and Kagan have a valid point: before you know it, technology will surely progress to the point where the police can accomplish the same thing without engaging in a physical trespass, and now you need to come up with a whole new rule. On the other hand, this is only a problem if you think the Fourth Amendment necessarily implies One Perfect Rule and it is our neverending job to try and figure out what it is. If you accept that notions of “reasonableness” constantly evolve with technology then it isn’t a problem that you have to announce a new rule every so often.
I think Justice Breyer is probably right to say that the debate over whether this is a “search” adds more confusion than clarity to the argument. One you accept that we’re in uncharted territory thanks to evolving technology, reasonableness becomes the real inquiry. Creating a definition of “search” merely serves as a proxy for the question of reasonableness.
It’s probably true that issues like this are best left to the legislature in a perfect world, but this brings to mind the wisdom of the late Bill Stuntz: the courts have constitutionalized criminal procedure to such an extent that the legislature simply leaves everything to them at this point. If the courts decided to punt the legislature might be so gobsmacked that it wouldn’t know what to do.
November 8, 2011, 1:51 pmanon says:
And David Schwartz is correct as well.
The 100 times zero is still zero assumptions is wrong in a world of cheap, ubiquitous sensors and data mining.
The justices fail to show any understanding of technology post Kernighan & Ritchie.
November 8, 2011, 1:52 pmgwinje says:
Regarding the notion of leaving this to the legislature, I’m surprised Professor Kerr didn’t mention what I thought was the best line of the argument. After (I think) Scalia pushed this point again, Leckar said (something like) “I can give you 535 reasons why you don’t want to leave this to Congress.”
November 8, 2011, 2:03 pmAnthony J. Lawrence says:
I’d like to echo Steve, of all people. Scalia’s rule (which I’ve advocated here before) seems a perfectly reasonable stopgap (Kyllo isn’t perfect, either, as we’ve discussed here before). All the hand-wringing about the lack of a perfect rule, exemplified by Sotomayor’s exclamation is a tad misplaced, and once again, they show that the Court is, erroneously in my opinion, most concerned with the rights of the police to most thoroughly search rather than the individual to be free from unreasonable searches and seizures, which I think is supposed to be the point of the Fourth Amendment. The rule that best effectuates the latter should be preferred.
November 8, 2011, 2:10 pmA Mangy says:
You can honestly compare a GPS tracking device to a paper flyer left on the window?
November 8, 2011, 2:12 pmErin Murphy says:
The argument underscored the Court’s fundamental discomfort with new technologies, and the difficulty in engaging in some of the inquiries the Court wanted to pursue without a complex understanding of how the technologies actually work. Justice Sotomayor showed the most sophistication in this regard; she clearly gets that it is both cheap and easy to monitor location, especially as smart phones, EZ Passes, and other location-chipped devices become ubiquitous. I was disappointed that the litigants couldn’t properly answer the question that opened the respondent’s argument about the technical specs of the devices… the Justices repeatedly referenced how the devices have changed since Knotts and Karo, but no one could tell them precisely how, or give concrete and realistic examples of what they might look like in the near future. I continue to plug my student’s paper along these lines (exploring the technical specifications of location trackers from Knotts/Karo to now), which I think is very helpful in this regard: http://ssrn.com/abstract=1954222.
November 8, 2011, 2:18 pmKazinski says:
Well I’ve been reading Orin’s posts, and while I think placing a GPS under a car is something that shouldn’t be allowed, he has gone over the constitutional ground pretty carefully, and there doesn’t seem to be anything in the constitution that precludes it.
It would be nice if they would just pass around a list and we could all write down our personal policy preference for what is constitutional or not, then SCOTUS could issue a ruling. But that isn’t the way it works.
So no, I don’t think they should take it upon themselves to declare warrantless GPS monitoring unconstitutional unless they can articulate a clear constitutional basis.
November 8, 2011, 2:24 pmLior says:
* Should it be legal for the police to have a drone continuously and autonomously follow the suspect car from the air?
* Should it be legal for the police to install cameras at every intersection, permanently record all the images, and later reconstruct the path of the car?
Both methods of surveillance involve using technology to do something that, in principle, could be done by a human from public space.
November 8, 2011, 2:26 pmMike S. says:
I find Scalia’s common law trespass model intriguing. But if that were the rule when Kyllo was decided, would he have ruled the same way? Using a thermal imaging device to read the heat being emitted from a home isn’t a trespass, is it?
November 8, 2011, 2:32 pmNathan says:
Couldn’t placing a tracking device on a car be considered a form of conversion?
November 8, 2011, 2:32 pmkeep it simple says:
If the government installs a program or deploys a device that functionally changes the utility of a person’s property, it is a seizure, as the government has interfered with the exclusive right of possession.
Attach a GPS to a car, the car is now self-reporting its movements to the government, warrant required.
Install a computer program (virus) that overrides OnStar to get that same GPS tracking information, same thing, warrant required.
Deploy a stingray to find an unknown cellphone in a subject’s pocket, that cellphone is now a law enforcement beacon, warrant required.
Maybe the problem is that the concepts of search and seizure have been blended together. This really isn’t a search, it is a seizure. The idea of a fake GPS is really missing the point that a live GPS obviously interferes with the exclusive right of use and possession of the property. If the government towed your car, used it as a concrete jersey barrier while you were asleep, and put it back in your driveway when you woke up, it would still be a seizure, even though a) you weren’t using the car at the time and b) probably would never use your car in that manner.
There is no reason that Kyllo and Jones can’t coexist. You can’t interfere with a person’s property rights, and you can’t use technology to conduct a touchless search. Some courts have held that sound waves can be a trespass, so why not light beams or other future technology?
November 8, 2011, 2:37 pmWake Up Little Susie says:
Couple of points:
1. One collorary of the fact that 4A protects, in the first instance, places, not privacy means that it does not matter that the police could collect the info by a series plain view observations. For example, imagine that a pile of contraband could be observed from a plain view location (the front door window) or a non-plain-view location (a window in the curtilage). The police officer views the contraband from the non-plain-view location and then argues that tere is no 4a violation because the officers could have viewed the contraband from the plain view location. What result? It simply does not matter, one way or the other, that the GPS info could be obtained by traditional plain view methods.
2. The issue, to me, is whether a GPS attached to a moving vehicle is analogous to plain view or a trespass. As I understand Justice Scalia’s position, he has it kind of backward. Specifically, the installation of the GPS may or may not be a trespass, but once the car starts moving, I think the trespass status becomes clearer. Imagine that a police man on skates rolls out to your parking place and grabs the rear bumper of your SUV. Not a trespass. Now you go out to your SUV and drive off, but you don’t see the police man on skates by the back bumper. He hangs on as you drive off. NOW its a clear trespass. Let’s do another. A person gently wedges a tennis ball into the end of a vehicle’s tail pipe. Maybe not a trespass. Owner of the tennis ball decides to leave it there, knowing that THE VEHICLE OWNER will try to drive off without seeing it. Now it is a trespass. We let people touch and be near our vehicles when they are stationary in ways that we do not let them near or on our vehicles when they are travelling. Bringing it all back home, the GPS becomes a trespass once the vehicle starts moving (and remains a trespass so long as the vehicle continues to move).
3. Justice Scalia’s idea about trespass law being used as a Fourth Amendment protection minimum seems like a good idea, even if he misapprehends what the relevant trespass law is.
November 8, 2011, 3:20 pmAnthony J. Lawrence says:
I doubt he wouldn’t have, because he’s clearly uncomfortable with the government peering into the home, which is traditionally the most protected area under the Fourth Amendment. It’s no different to distinguish from that to this or this to that, really.
November 8, 2011, 3:29 pmNeal Goldfarb says:
I was somewhat surprised to see the property issue given such short shrift by the Court, but it may turn out to be a sleeper, because it gives the Court a way to punt. If they affirm based on the existence of a property intrusion, they avoid giving their blessing to a practice that most of them are clearly troubled by, and also avoid the need for difficult line-drawing, which also troubles them.
Two further points on the property issue. First, what distinguishes this case from the hypothetical of installing a nonfunctioning device is that in this case, the government converted Jones’s car into a surveillance device that it used against him. That’s a significant intrusion on the right to control use of one’s property, and it’s an intrusion that doesn’t exist if the GPS device doesn’t work. I think it’s certainly reasonable to argue that this could justify treating this case (but not the hypo) as involving a seizure.
Second, it’s not at all clear that it’s necessary to treat “search” and “seizure” as separate pigeonholes, with considerations such as property going only in the “seizure” pigeonhole and those such as data-gathering going only in the “search” pigeonhole. In both Katz and Silverman — two decisions that are extremely important for this case — the Court didn’t say whether the government’s conduct involved a search as opposed to a seizure, or vice versa. Rather, in Katz it described the bugging as a “search and seizure,” and in Silverman it described the use of the spike mike simply as a “Fourth Amendment violation.” Taking a similar approach here would allow the Court to combine the strongest parts of both lines of argument.
Disclosure: I am a friend of Steve Leckar’s and I was involved in helping him prepare for the argument.
November 8, 2011, 3:30 pmanon says:
http://www.wired.com/threatlevel/2011/11/gps-tracker-times-two/all/1
Busted! Two New Fed GPS Trackers Found on SUV
By Kim Zetter November 8, 2011 | 5:30 am | Categories: Surveillance
As the Supreme Court gets ready to hear oral arguments in a case Tuesday that could determine if authorities can track U.S. citizens with GPS vehicle trackers without a warrant, a young man in California has come forward to Wired to reveal that he found not one but two different devices on his vehicle recently.
The 25-year-old resident of San Jose, California, says he found the first one about three weeks ago on his Volvo SUV while visiting his mother in Modesto, about 80 miles northeast of San Jose. After contacting Wired and allowing a photographer to snap pictures of the device, it was swapped out and replaced with a second tracking device. A witness also reported seeing a strange man looking beneath the vehicle of the young man’s girlfriend while her car was parked at work, suggesting that a tracking device may have been retrieved from her car.
Then things got really weird when police showed up during a Wired interview with the man.
…
November 8, 2011, 3:35 pmMike says:
I think this is the best argument I have seen for how to draw a reasonable line around all this. It encapsulates the immediate heart of the privacy concern, in that you are turning the person’s own property against them. When a person drives a car, there is a reasonable assumption that it is not phoning in your location to someone at every opportunity.
Now, I think there is a separate possible line to be drawn regarding the cameras at every intersection theoretical, but I don’t know that it needs to be addressed here. This articulates a pretty clear line of what is an isn’t constitutional, that *doesn’t* tread on most forms of human observation.
November 8, 2011, 4:09 pmMike says:
I think this is the best argument I have seen for how to draw a reasonable line around all this. It encapsulates the immediate heart of the privacy concern, in that you are turning the person’s own property against them. When a person drives a car, there is a reasonable assumption that it is not phoning in your location to someone at every opportunity.
Now, I think there is a separate possible line to be drawn regarding the cameras at every intersection theoretical, but I don’t know that it needs to be addressed here. This articulates a pretty clear line of what is an isn’t constitutional, that *doesn’t* tread on most forms of human observation.
November 8, 2011, 4:10 pmAnonymous Coward says:
I don’t like it. That would imply that the police can attach the GPS to your stationary car, leave it there for some period of time while the car remains stationary and use it to verify that you haven’t gone anywhere, then remove it without any constitutional violation. That seems too arbitrary, and it makes the violation depend on subsequent acts by the citizen not in the control of the government.
It seems like the problem is that most of us feel that GPS tracking without a warrant ought not to be allowed, but the fourth amendment is not exactly filled with detail itself and (naturally) neither it nor the case law were created with the technology in mind because it had not previously existed. Stare decisis is not a suicide pact, so to speak. If applying the existing rule violates our intuitions then it seems reasonable to strongly consider the possibility that the existing rule is incorrect or incomplete.
In those cases it might be best to work backward. Determine why it is that we feel warrantless GPS tracking ought not to be permitted, then see if that reasoning makes sense as a rule. If it doesn’t then maybe our feeling is misguided (or we’ve identified the wrong reasoning), if it does make sense then that ought to be the rule we use going forward.
With that in mind, it seems clear that the physical intrusion is not the issue. The same concern does not arise if the police put a flier on your windshield, but it does arise if they put license plate reading cameras at every intersection to achieve the same effect without ever touching your vehicle.
The problem is the tracking, not the method. Everyone is assuming that we have to distinguish GPS tracking from having a police officer follow you around and record your location whenever you make use of public roads. Maybe it isn’t different at all, we just never cared before because it was never cost effective to have the police follow around scores of innocent people. Why shouldn’t the police need probable cause to follow you around in person too? Would it really impede them? What legitimate justification is there for police to track the location of innocent citizens who are not suspected of any crime?
November 8, 2011, 4:33 pmZiz says:
I disagree. Flyers are meant to be seen. I can readily remove the flyer (and probably should) before I begin driving around. And inert objects don’t coopt my property for another’s purposes.
November 8, 2011, 4:34 pmRoscoe says:
This is the problem with the Supreme Court using the Fourth, Fifth and Sixth Amendments to essentially write (and continually rewrite) a police procedural manual. The Court doesn’t have the background or the staff to either understand the technology or to make the necessary policy decisions on where and when the use of the technology is reasonable. And because the Court decides things years after the fact with random cases it is always going to be playing catchup.
Congress is clearly better suited for this sort of thing. However, as one commentator noted above, the Court has taken issues of police procedure out of Congress’ hands for so long that maybe it no longer knows that this is really part of its job.
Still, I haven’t completely lost hope. There are folks on both the left (i.e. the bleeding hearts) and right (i.e. the black helicopter crowd) that are suspicious of the potential for government overreaching. I think that if the Court punts on this, Congress has the ability to require a showing of reasonable suspicion or probable cause to be made before a Magistrate before this technology can be used to track a person’s movements.
November 8, 2011, 4:47 pmSteve says:
I don’t really buy this argument. It’s still a vehicle. You can drive it anywhere you want. It’s not like the basic purpose of a car is to travel places without being detected. I doubt you could fit the location of your vehicle within the privacy exception in Katz v. United States.
November 8, 2011, 4:57 pmnil says:
re: Neal Goldfarb
I agree, and not just because I made the same argument in my spring petitioning packet. The wording of the 4th backs this up (to be secure in one’s effects strongly implies an exclusionary right), as does the common sense of a layman–tell the facts to the average man on the street and you’ll inevitably provoke more surprise and outrage from the initial installation than you will from the subsequent monitoring. The original reasons for the reduced expectation of privacy for automobiles similarly doesn’t seem to apply here–mobility isn’t relevant, and regulation implies a gov’t right to investigate and observe, and perhaps even to require modification, but not a power to modify secretly.
November 8, 2011, 4:59 pmZiz says:
How does Congress reach local police practices?
November 8, 2011, 4:59 pmFub says:
We can just change the popular motto “Land of the free and home of the brave” to “Still not quite as bad as the old Soviet Union.”
November 8, 2011, 5:31 pmRenee Marie Jones says:
This is hilarious. The Supreme Court is suddenly worried that we will lose our privacy and our freedom? They have spent the last decade ruling that we are not entitled to any privacy or freedom!
November 8, 2011, 5:32 pmfederal white collar criminal says:
I’m glad to see Justice Scalia questioning Katz, though I think trespass law may be too narrow a lens. In general, I don’t see much downside to a rule that considers anything that the police do a search if ordinary citizens couldn’t do it. The government generally does a decent job of marking out the borders of these conflicts between private individuals.
I suppose under such a rule the police couldn’t freely trapse along my open fields and look around for things. But that doesn’t exactly bother me and I doubt that open fields really represent a large source of necessary investigative evidence.
November 8, 2011, 5:32 pmRoscoe says:
Well, I suppose it could under the commerce power. But the intent of my post was that the Congress pass something to govern the conduct of federal law enforcement agencies and the standards for evidence in federal courts. The states could set their own rules (although the level of federal/state coordination in “big” cases might mandate that the states use the federal rules by default).
November 8, 2011, 5:37 pmste williams » US Supremes liken GPS tracking to 1984‘s Big Brother says:
[...] Court. According to legal scholar and blogger Orin Kerr, who attended the hearing, the justices had mixed reactions to that specter, with some comparing the continuous monitoring to a chapter out of George Orwell’s 1984 and [...]
November 8, 2011, 5:52 pmTatil says:
Really? What is the betting line on that one? If Congress was animated about the government intrusion, it would have moved in and passed a law banning the practice already.
What would be the point of waiting a decade for SC to make a decision? If the politicians are not comfortable with the practice, but don’t want to look soft on crime, SC declaring it unconstitutional would give them an easy scapegoat. If SC allows the government to keep on using this technique, politicians would still have to worry about looking soft on crime. I would be extremely surprised if Congress passes such a law and my jaw would drop if the president actually signs it.
[OK Comments: A Supreme Court decision rejecting a privacy right often acts as a catalyst to legislative action. Congress often waits until the courts have decided whether they'll deal with the problem before trying to step on. If the Court regulates the practice under the Constitution, Congress generally considers the problem "solved" and stays out. If the Court says that the practice does not trigger constitutional scrutiny, on the other hand, the front-page news of the Court's decision puts the issue on the legislative agenda. Consider, for example, the Right to Financial Privacy Act of 1978, which quickly followed the rejection of fourth amendment rights for bank records in United States v Miller in 1976. Another leading example is the Pen Register Statute, which followed the rejection of Fourth Amendment rights for pen registers in Smith v. Maryland. Congress could have regulated these practices before the Supreme Court acted, but it didn't. Instead, the Court's decision drew criticism and put the issue on the front-burner that triggered Congressional regulation.]
November 8, 2011, 5:52 pmTatil says:
Government is still using your property for its own purposes without your consent. What if the government decides to deliver some mail through private cars to save costs? Could they force (or hide) just a couple packages headed towards your neighborhood, as you are going that way in any case?
November 8, 2011, 6:11 pmbeowulf says:
Curious that no one raised the posse comitatus issue involved here.
Physical 24/7 surveillance (or, for that matter, the beeper used in Karo to track a suspect) involves actions by civilian law enforcement officers. This case involves uses a military navigation system operated by airmen of USAF Space Command to assist civilian police operations. That’s against the law unless Congress specifically authorizes it (Granted, I doubt one citizens in a 1000 is aware the GPS constellation is operated by the Air Force).
November 8, 2011, 6:14 pm“18 U.S.C. § 1385. Use of Army and Air Force as posse comitatus
Whoever, except in cases and under circumstances expressly authorized by the Constitution or Act of Congress, willfully uses any part of the Army or the Air Force as a posse comitatus or otherwise to execute the laws shall be fined under this title or imprisoned not more than two years, or both.”
Fabio Arcila, Jr. says:
Orin:
You conclude in your para. 2 that “Scalia is on board for saying that installation of the device is a search, but no more.” I’m surprised you put it that way. I’d say he was on board for saying that installation of the device was a seizure because it was a trespass, but no more. Why would he say it was a search? As you note in your para. 6, he emphasized the 100 x 0 = 0 argument, and at a separate point he mocked Jones’s argument that collecting the data was an unconstitutional search because Jones had intended to keep such data private. Given all that, I took Scalia to be the one justice who indicated a (perhaps strong) preference for ruling on seizure rather than search grounds.
I’d also argue that you are soft-pedaling the extent to which Roberts, Kennedy, and Breyer all expressed serious concern with the Orwellian implications of the government’s argument that it can GPS track anybody, for any reason, for any length of time, in public spaces at its sole discretion. I explained and emphasized this issue before (here). At one point, Roberts leaned forward and asked (paraphrasing) “Let me get this straight. The Government’s position is that it can place a GPS device on the car of each justice up here, and track our movements in public spaces for as long as it wishes?” Dreeben for the U.S. refused to answer “yes” though it was clear that was his answer. Perhaps it was just me, but I sensed the response was electric: you could feel the entire room’s energy changing and reacting, including up on the bench. Despite all that, I agree with you that there is no telling whether such a concern will play out in the opinion, or whether Roberts was really taking the issue to heart or playing devil’s advocate. Certainly, the Court did not get a strong response about how to find a privacy right in some public movement contexts but not others (e.g., the pervasive street camera hypos you note in your para. 5).
Relatedly, you don’t note the extent to which the Court was resistant to Dreeben’s argument that Orwellian scenarios can be ignored now and dealt with later if they occur. I did not perceive that argument to gain any traction. And for good reason: as I explained here, if the government should win on the search issue now because 100 x 0 = 0, there isn’t any basis for changing that calculation later if the government starts dragnet GPS monitoring of the public in public spaces…100 million x 0 would still equal 0.
Finally, one last point: I was fascinated to see that Justice Thomas seemed extremely involved. Though he did not utter a word (as usual), he had several long private exchanges with Justice Breyer, and kept looking at legal volumes that he was requesting and that were being delivered to him.
November 8, 2011, 6:27 pm-Fabio Arcila, Jr.
CDU says:
It’s a local police practice that uses a system created and provided by the federal government.
November 8, 2011, 6:40 pmSteve says:
It would be my honor to deliver the Government’s packages. In all seriousness, I don’t know whether it would be permissible, I just don’t think it constitutes a seizure or a taking of my car.
November 8, 2011, 7:12 pmBrian C. says:
Mr. Kerr: it sounds like you were spot on it in your analysis at the William & Mary Law School panel re. the installation vs. the actual use of the device. Very impressive!
November 8, 2011, 7:33 pmYant says:
Isn’t there any easy limiting factor in the squeezing-the-bags-on-the-bus-case (sorry, can’t recall the name). Like the public expects their bags to be jostled but not squeezed, couldn’t the public expect to be viewed in public by persons or cameras but not GPS devices? Granted, that would almost certainly require the overruling of the beeper case and perhaps the helicopter-over-the-home case. Still, it seems that would be a workable line here, and that would put us in search land for new technologies. Then the Court could judge each one on reasonableness or require a warrant.
November 8, 2011, 7:51 pmSCOTUS hears GPS case | ameerbenno.com says:
[...] Now go, read more, then see CATO Institute’s amicus brief here, then read thoughtful discussion here and then here. [...]
November 8, 2011, 8:00 pmOrin Kerr says:
Fabio Arcila writes:
From the transcript:
As for your other concerns, Fabio, I’m delighted to let readers consult the transcript to get a sense of whether I was accurately reporting where the Court seemed to be going. It’s available here:
http://www.supremecourt.gov/oral_arguments/argument_transcripts/10-1259.pdf
November 8, 2011, 8:07 pmC says:
I’d like to build from this concept. Here is a suggested new bright line: Physical surveillance is currently acceptable because it is public activity. Both sides have the potential to observe each other.
GPS surveillance is not inherently “public”, it is covert, using technology that is intentionally designed to collect information yet also not be itself observed. This concept will enable the bright oline to extend beyond GPS. A commenter above asked: what if a drone is used to loiter above and constantly track via stand-off visual observatation. That too would become obviously illegal by the covert nature of the surveillance technique. In contrast, video cameras that are not camouflage but rather are observable could be used for surveillance without a warrant. Currently,video cameras on street poles for traffice have a not only the camer but also a sign announceing the surveillance.
Began developing this idea from the post on the “William and Mary Law school” panel.
more here:
http://volokh.com/2011/11/06/panel-on-united-states-v-jones-the-fourth-amendment-gps-case/#comments
“Whether it is a police officer or private detective, whether in a distinct uniform or generic clothes, when you are in public you can observe others and react to them. “…
The surveillance by GPS deprives me of numerous self-protection and self-defensive options. It should not automatically be consider a “public activity” but rather is a covert activity like wiretapping.
November 8, 2011, 9:01 pmFabio Arcila, Jr. says:
Orin: thanks for referencing, and posting to, the transcript, which I still haven’t had a chance to review. I take your point about Scalia and the seizure/search issue, but I interpreted the passage you quote as Scalia trying to help Leckar clarify Leckar’s position: namely, that Leckar was confusing the point at issue (seizures) by referencing Silverman (a search case). Given the other points Scalia had made, which I referenced in my first comment, I still think he indicated a greater attraction to a seizure than search ruling. And doesn’t that just make sense? In what way is installation, in and of itself, a search? I have a hard time wrapping my head around that concept.
I’ll be very interested to hear the reactions from anyone who reviews the transcripts.
November 8, 2011, 9:13 pmjoshua says:
I don’t get the excuse that it’s OK because the car is on public roads. What about when it’s in your driveway?
November 8, 2011, 9:34 pmtorungo says:
Comment to the author:
Mr. Orin Kerr
Mr. kerr i was enjoying your descriptions of the Supreme Court deliberations on this case.
Then I was some what jarred by your interjection of ans ‘aside’ where you inserted your own personal legal comments/analysis.
Though you may be a good journalist/blogger I did not want to spend time with your attempts at legal analysis and commentary commentary. We have justices for that. (I doubt they consider themselves bloggers)
November 8, 2011, 10:35 pmCeltic_hackr says:
One thing I notice no one here touching on. If attaching a GPS locater to your car isn’t a violation of the 4th why don’t we all just let the government implant a GPS tracker under the skin of every US citizen and every visitor to the US. Problem solved.
You are aware they make GPS trackers that can be implanted in the human body, right? Some people have actually done it. Some people have done it to their children.
November 8, 2011, 10:54 pmJohn A says:
This has probably come up, nut I have not seen it.
Despite known flaws, I often think via analogy. And this GPS business seems almost exactly analogous to wiretapping. Especially since law-enforcement will have less and less occasion to install a device of its own on motor vehicles, as many now are sold with a [vendor trackable] GPS already installed, like putting a phone tap at a switching station rather than actually inside a home. IF installation and/or use of wiretaps requires a search warrant, so too should use of GPS devices/data.
Some cell phones also have GPS installed, and/or can often be tracked via cell-tower “ping” data even without GPS. Is accessing these covered?
November 8, 2011, 11:04 pmrapscallion says:
So, is it going to be the case that we can all attach GPS devices to each other’s cars? Can we attach them to cop cars? If I take a GPS device off my car am I responsible for its disposal? Can one of you legal eagles please answer?
November 8, 2011, 11:45 pmTatil says:
It is too late to Google it, but I remember a new story where mechanics notice such a device on some guy’s car, he has it removed, puts it up on Craigslist, but angry government agents come knocking to take back their device with some legal threats. I figure if you are not allowed to sell it, you cannot dispose of it, either.
November 9, 2011, 1:23 amTatil says:
Thanks for your reply, but then again, there is also this recent example:
governor-brown-vetoes-bill-on-searching-cell-phones-incident-to-arrest/
I am still betting against Congress passing a bill banning it, if SC does not bar it.
November 9, 2011, 1:30 amTGGP says:
Federal white-collar criminal, you took the words right out of my mouth. Government is subject to the law just like the rest of us.
November 9, 2011, 1:46 amAnonymous Coward says:
That would be the day. Have some anarchist throwing smart dust sensors at any vehicle that comes out of the police motor pool, and then publish a smart phone app that will detect them if your phone is in range of a police vehicle and report back the location to create a big real time map of where all the police vehicles are and let everyone see it. Turnabout is fair play, no?
November 9, 2011, 1:59 amNo Slippery Slope Please says:
I like the “keep it simple” idea of functionally changing the property being a seizure, and I think a principled ruling could be made rejecting the government secretly turning a person’s property against them. I would go further in this case though, and hold that the use of a GPS tracking device is also a search.
The question is not whether it’s a search OR seizure. Really, installation and use of a GPS tracker is a search AND seizure; but in order to see it you have to distinguish between the “receiving and recording GPS signals” part of the device and the “transmitting processed and recorded location data to the government” part of the device.
“GPS trackers” use two entirely distinct technologies–GPS receivers and cellular modems–one passive and one active. A “tracker” consists of a GPS receiver (i.e. antenna and supporting circuitry that can receive and process signals from GPS satellites into lat/long data); a cellular modem (i.e. antenna and supporting circuitry that can transmit and receive digital data over the cellular network); and a microcontroller (basically a tiny computer in a chip that does simple things very very fast) that acts as a data-format and protocol translator and enables the two other components to “talk” to each other.
Nobody except the military can transmit to GPS satellites. All GPS devices calculate their location by passively receiving several coordinated signals from different satellites. By triangulation and fancy math, the receiver figures out where it is on the earth. In your everyday car navigation system, a GPS receiver figures out its current location, then the calculated location is further processed by other components to visually display the user’s location on a map. In a “GPS tracker”, the GPS receiver component calculates its location, adds a timestamp, then stores it in temporary memory. Then, at a predetermined interval or upon the cellular component receiving a signal from the government; the microcontroller that allows the two components to interact accesses the stored data from temporary memory, translates it into a format the cellular modem can understand, and passes it into the cellular modem which transmits it to the government over the cellular network.
In a nutshell, the GPS part figures out where the device is and stores that info; and the cellular modem sends the government the info remotely, either on a schedule or on demand. So you have two distinct government actions: installation of the device and remote accessing of the data it generates and stores in itself.
You have a seizure when the device is installed and left there because the government is taking control of a person’s property to add a function the person doesn’t expect it to have or consent to–gathering, recording and transmitting volumes of location data to the government. The basic idea of the government “seizing” property is the government taking control of it for its own ends, whatever those ends may be (e.g. use as evidence, use in investigation, personal revenge, etc.).
You also have a search because in this particular modification (installation of a GPS tracker) the government is remotely accessing and copying data that is passively received and recorded into temporary memory in the device (which the government inserted into the person’s property) itself.
More generally, I’m not convinced of the validity of the rule that everything you do in public is OK for the government to observe and record. The Founders would have had a serious problem with it if the Brits had soldiers at every possible travel point all over the colonies, and they tracked every person that came through, and then had an army of people who just sat around all day and reconstructed everyone’s routes from the checkpoints’ reports.
A very reasonable argument can be made that most people expect that in a complex society of 310 million spread over the entire United States, it’s so unlikely that anyone will follow them everywhere they go and record everything they do unless there’s a very good reason for it, that a warrant should be required to do it. In my opinion, it shouldn’t matter whether the surveillance is done by a human being using their standard senses (near surveillance), or by a computer ultimately operated by human beings from a remote location (far surveillance). I think ultimately this is going to be a matter for the legislatures to resolve because cameras aren’t really that useful unless they’re widely deployed, and there are a lot of details to work out, but some sort of independent agency that can’t disclose camera footage unless it’s shown a warrant and has to delete footage on a set time frame could be one way to go about it.
November 9, 2011, 2:09 amNo Slippery Slope Please says:
BTW, if anyone wants to see what happens when cameras are everywhere, they should watch the movie “War Games: The Dead Code.” The acting isn’t that great, but it’s a very disturbing look at how mass deployment of public surveillance cameras can lead to a frightening “greater than the sum of its parts” system.
November 9, 2011, 2:18 amDavid Schwartz says:
It’s not *the* basic purpose, but it is a well-recognized advantage of cars. Ask any teenager.
Suppose I have a painting. The government takes my painting and hangs it in a museum. The primary purpose of a painting is to look at it, and I can still look at it. So no seizure?
November 9, 2011, 6:55 amUS Supremes liken GPS tracking to 1984‘s Big Brother :: WES Computing says:
[...] Court. According to legal scholar and blogger Orin Kerr, who attended the hearing, the justices had mixed reactions to that specter, with some comparing the continuous monitoring to a chapter out of George Orwell’s 1984 and [...]
November 9, 2011, 7:29 amA Conservative Reason To Oppose The Drug War « Current Events « PostLibertarian says:
[...] Kerr has a good post on Volokh reflecting on the arguments and the judicial responses from the courthouse yesterday, and [...]
November 9, 2011, 7:43 amSCOTUS and GPS Tracking: US v. Jones and Secret PATRIOT | emptywheel says:
[...] Act to–presumably–use phone geolocation to track people. (Here’s Dahlia Lithwick, Orrin Kerr, Julian Sanchez, Lyle Denniston, and Kashmir Hill on the hearing [...]
November 9, 2011, 12:20 pmTemporalBeing says:
There’s a basic difference. The car could be moved into a private area that is police could not otherwise survey – by satellite or other means – and the GPS device could potentially still record the information they want. In this case, it goes above and beyond what they are able to do via monitoring the vehicle in public view.
For that matter, what if the vehicle leaves the US (out of the jurisdiction of the police)? Is the GPS still legal? Is the data still legal? They can’t legally continue surveillance of the vehicle once it has left their jurisdiction, at least not without cooperation of the other country; yet, an attached GPS device would do just that. (Yes, they could probably use satellite imagery in this case; but that is beyond the abilities of most if not all local police.)
IANAL, that’s just how I see it.
November 9, 2011, 12:54 pmgwinje says:
Ha! Yeah, Prof. Kerr, enough with the “legal analysis and commentary commentary.” Jeez. As my own aside, one that I hope turongo will condescend to forgive, I consider myself a blogger and a SCOTUS Justice.
November 9, 2011, 3:16 pmFourth Amendment’s Future if Gov’t Uses Virtual Force and Trojan Horse Warrants? | the Net economy says:
[...] Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case (volokh.com) [...]
November 9, 2011, 8:04 pmErik says:
Professor Kerr, thank you so much for the highlights of oral arguments. I appreciate Mr. Arcila’s comments about Thomas as well, since that’s certain to never get mentioned again and definitely would not show up on Oyez. I wanted to go see this case, but, as the future blog post indicates, would probably have shown up way to late (i.e., 5:45 in the morning).
I don’t see an easy way to resolve this. In my mind, it doesn’t look distinguishable from Karo, just far more scary. But that’s the consequences of our Fourth Amendment jurisprudence. We give a rule to police, the police probe (or abuse depending on your view) the rule to the maximum extent possible. Scalia’s theory is an interesting idea. He certainly has adopted Justice Harlan’s change of heart regarding legitimate expectation of privacy – where such expectation ends up being what a Judge expects, not what the people expect. He also does not have the votes to overrule Katz – I am certain of that, but as a two-tiered approach it might work (similar to the rule in Crawford). For Fourth Amendment purposes, any place an individual has a legitimate expectation of privacy is a search, but, in addition, all places where the government commits a trespass is a search. That wouldn’t overrule Katz, but it would put into question a lot of curtilage doctrine. But it might get Five votes (Scalia and Thomas because they can push the Fourth Amendment’s focus to a view they believe to be more accurate, the more liberal justices because it would limit the abuse in this case).
I think Wiretap law shows Congress does act in certain circumstances. Granted, the Courts struck down the first law, but they at least decided it was better to regulate police conduct explicitly rather than through case law.
November 9, 2011, 9:03 pmbeowulf says:
No Slippery Slope,
Nice explanation of GPS technology. But I think GPS trackers are a nearly obsolete technology in that I’d imagine cops would only use it now when a suspect doesn’t carry a cell phone, in which case they’d just track the phone (granted, I suspect smart criminals are avid fans of The Wire and would know to always use a disposable “burner” phone).
What’s interesting about phones is that the FCC requires phones to support E911 service (typically via GPS but older phones via the less accurate tower triangulation) allowing emergency services to respond to emergency calls. So the one agency of the govt (Dept of the Air Force) provides the passive GPS service while another agency (the FCC) requires all new phones to fix location via GPS signal and make it available to 911 operators. On the one hand, you could argue that no one carrying a phone should have any expectation of privacy, on the other, it is pretty damn Orwellian that thanks to technology developed so the Navy could launch Trident SLBM with pinpoint accuracy (how the AF got to run GPS instead of the Navy is something of a mystery) can be used to track any citizen with a push of a button.
November 10, 2011, 1:36 amIt should be treated like a wiretap, tracking a domestic criminal law suspects with a showing of probable cause for a wiretap, national security suspects with the lower standard of proof required by the Foreign Intelligence Surveillance Court. Amending the posse comitatus law wouldn’t hurt (curiously, if the Navy HAD been placed in charge of GPS that wouldn’t be an issue, it only applies to the Army and Air Force).
maccad» US Supremes liken GPS tracking to 1984‘s Big Brother says:
[...] Court. According to legal scholar and blogger Orin Kerr, who attended the hearing, the justices had mixed reactions to that specter, with some comparing the continuous monitoring to a chapter out of George Orwell’s 1984 and [...]
November 10, 2011, 6:44 amTemporalBeing says:
beowulf,
While I am not a lawyer, that typically requires a warrant, no?
November 10, 2011, 10:03 amLnGrrrR says:
Beowulf,
The AF took over GPS operations because the Air Force is in charge of space operations.
November 10, 2011, 3:38 pmLinkage | Overhack says:
[...] Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case [...]
November 10, 2011, 5:02 pmFlorida Non-Lawyer Type says:
I think they will call the installation and use of GPS a search, and that it will be subject to the warrant requirement which has plenty of exceptions already. I think it is a search because installing it without using it gains the police nothing, and it cannot be used without installing it. It bridges the gap between what the police know and what they want to know, which motivates all other searches. Orin sees these as separate questions, but I do not.
Additionally, I do not think GPS can be used without a warrant because it is fundamentally different from most searches in that it is forward looking, not backwards looking. If police search a car, they discover the car’s history to that point. If they attach GPS, the narrative starts at the activation of the GPS, and moves forward from there. It has more in common with a wiretap, as other commenters have pointed out, but this too is subject to warrant requirements.
The question is about a hypothetical, should this end up being true. Let’s say a good citizen is pulled over for a traffic infraction, and the officer says, “Mind if I look around in here?” Having nothing to fear, so she/he reasons, the good citizen says, “Sure.”
Has this good citizen consented to the attachment of a GPS device to his vehicle? The Jones case turns on the pairing of no warrant and no consent. My hypothetical contains no warrant but consent to a search that could be construed as a waiver of Fourth Amendment protections. So, would consent to search be sufficient to enable scrutiny far beyond what the citizen believes he is consenting to?
Finally, in Florida we have the Castle Doctrine, which permits use of deadly force against unlawful intruders in the home. It has been extended to include occupied cars. It seems that having the home and a car on equal footing in one circumstance (justifiable use of force) and not another (expectation of privacy) is absurd. Either they are both invalid, or they are both valid.
November 10, 2011, 6:11 pmDavid Schwartz says:
In fact, the Air Force even manages most Navy satellite operations. For example, see Rocket launches from Alaska with Navy satellite — “The total mission cost is $190 million, including the $45 million launch, which was conducted by the Air Force”.
November 10, 2011, 6:30 pmGPS Update – A little future oldthink about this week’s arguments « Blitz Blawg says:
[...] Volokh Conspiracy [...]
November 10, 2011, 9:57 pmTemporalBeing says:
While I otherwise agree with your analysis, I don’t think the expectation of privacy fully extends to a vehicle. Yes, there should be some expectation of privacy, but not nearly as much as in the home.
Remember too, most states require that to have a driver’s license, registered vehicle, etc. you must then submit to searches of the vehicle when a pulled over by the police. They don’t even necessarily have to meet the requirements for a warrant with the way the agreements are written – and you’re pretty much assumed to be hiding something if you ask for the warrant.
Conversely, the home is required to have a warrant unless you explicitly wave it – they cannot say because you have a home they can enter without a warrant. Now the property owner (e.g. land lord) can waive it if you are not available but to a limited degree.
The idea of personal safety – under which justifiable use of force falls – is extended to all locations where you may be, not simply the vehicle or home. If you are walking down the side walk then you can still use justifiable force. The fact that Florida explicitly stated that in the case of a vehicle is of no consequence.
So there would be a difference between the home and vehicle in multiple instances.
IANAL, that’s just how I understand it all.
November 11, 2011, 10:16 amUS v. Jones: Institutionalized Surveillance and the Fourth Amendment says:
[...] here and here, oral arguments available here. #dd_ajax_float{ background:none repeat scroll 0 0 #FFFFFF; [...]
November 11, 2011, 10:45 amJannek says:
The crux of this case is essentially the same as that of the “abandoned DNA” issue blogged about here by Orin a week ago.
It is the question of the scope of privacy protected by the 4th amendment.
This is an excellent opportunity for the court to eventual acknowledge that right to privacy is not limited to peoples home but CAN exist in the public sphere.
Such a reading of the 4th would allow to restore legal common sense within a lot of contemporary constitutional law issues that stem from the incompatibility of a 220 years old legal text and 21st century (technological) reality.
November 11, 2011, 11:49 amSteve S says:
If GPS surveillance requires a court order, based either on probable cause or relevancy, then certainly the much more intrusive physical surveillance, that is, having police actually follow you, must require court oversight as well,for it reveals so much more about a person, whom they meet, with whom they speak, where they go when the car stops, etc., then does GPS surveillance. Additionally, actually videotaping or photographing a person without their consent reveals much about them as well. If 4th Amendment protections are extended to surveillance in public places, where does it stop? Perhaps physical surveillance by police should not require court oversight, but should they seek to use binoculars, they should seek court approval.
November 11, 2011, 11:16 pmUpdate on Our Faculty’s Contributions to Debate over Supreme Court “GPS” Case « 20th & H: GW Law Dean's Blog says:
[...] blog posts by Orin Kerr at the Volokh Conspiracy, “Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case” (11/8), and <a title="Permanent Link to The Two Questions of Jones, and the Potential [...]
November 12, 2011, 2:47 pmSnowball says:
This is why we have an existing search warrant approval system. Plain view doesn’t usually require
November 12, 2011, 11:05 pma warrant. Unfortunately, since the modern person has so much information on their smart phones-along with the ability of the government to retrieve that personal data and track the phone, that the warrant system is at risk and so is the 4th amendment. Independent placement by the government of a specific technology based tracking device is a far cry from mobile and camera surveillance.
Devistated says:
After nearly two unblemished decades in law enforcement and always having been of the belief in more law enforcement powers and the ideology of “if you havn’t done anything wrong, you shouldn’t worry about it” mentality, I have changed my opinion. I was wrongfully accused of criminal acts of which the media wrote of, DA’s and LE officials talked about in as if it were fact. GPS attached to my vehicle, phones and computers tapped, only to find out I was not involved in the criminal activity they thought I was. Now career and reputation destroyed beyond repair, with no consequences to them and not even an apology, I can say I think a little caution should be used.
November 13, 2011, 1:28 amSupreme Court Hears Argument on Police Use of GPS Technology at The MTTLR Blog says:
[...] . so, if you win, you suddenly produce what sounds like 1984.” Orin Kerr on The Volokh Conspiracy summarized the Court’s feeling succintly: “the Justices were deeply worried about the 1984 [...]
November 13, 2011, 7:25 pmTemporalBeing says:
There’s a difference though – physical surveillance can only result in information that is in the public’s plain view where as GPS data may contain locations that are not – e.g. when a vehicle goes into a compound, behind the walls of what is in the public’s plain view – behind what the police would be able to see via physical surveillance.
That’s why GPS should require a warrant while physical surveillance should not necessarily require it.
For that matter, you can record a conversation with specialized equipment. Should the police be able to do so without a warrant even when people are in plain view? While I am not a lawyer, I believe they are required to have a warrant to record you without your authorization (at least audibly).
November 14, 2011, 9:58 amLibrary: A Round-up of Reading | Res Communis says:
[...] Reflections on the Oral Argument in United States v. Jones, the GPS Fourth Amendment Case – Volokh Conspiracy [...]
November 14, 2011, 2:50 pmDo you give up a reasonable expectation of privacy by carrying a cell phone? : QualTech Software says:
[...] On The Volokh Conspiracy, Orin Kerr wrote about the oral arguments in the United States v. JonesGPS case. “Justice Sotomayor and Ginsburg were both very worried about the Big Brother implication of using GPS devices: I counted 5 or so references to Orwell’s 1984.” David Kravets at Wired also mentioned that SCOTUS saw shades of 1984 in the case. According to Reuters, Justice Sotomayor wanted to know “how far the government could go, questioning whether the police could put a computer chip in a person’s overcoat or could monitor and track everyone through their cell phones. ‘That’s really the bottom line’.” Justice Stephen Breyer told the government’s attorney, “If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day every citizen of the United States. The real issue here is whether this is reasonable.” [...]
November 15, 2011, 8:04 pmJOLT Digest » U.S. v. Jones – Oral Arguments | Harvard Journal of Law & Technology says:
[...] by the Center for Democracy & Technology and Professor Orin Kerr for The Volokh Conspiracy highlight the justices’ discomfort with the idea that evolving technology might render current [...]
November 18, 2011, 8:45 amEvery Move You Make May NOT Be Protected « alabamacivilrights says:
[...] http://volokh.com/2011/11/08/reflections-on-the-oral-argument-in-united-states-v-jones-the-gps-fourt... Share this:TwitterFacebookLike this:LikeBe the first to like this post. [...]
December 5, 2011, 5:03 pm