The Secure Times

An online forum of the ABA Section of Antitrust Law's Privacy and Information Security Committee

Warrantless GPS Tracking is Unconstitutional Government Trespass

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In a 9-0 opinion released on Monday, the Supreme Court found that the installation of a Global-Positioning-System (GPS) device on a suspected drug dealer’s car without a current search warrant violated the Fourth Amendment’s prohibition on unreasonable searches. All nine justices agreed on the fundamental Fourth Amendment proposition but differed in their reasoning, leaving uncertain the scope of digital privacy.

The high court heard the case after the D.C. Circuit overturned the conviction of Antoine Jones, a nightclub owner convicted for conspiracy to distribute cocaine. His conviction was primarily based on the 2000 pages of data transmitted from the GPS device agents had secretly planted on Jones’s car for 28 days.

The majority opinion, written by Justice Scalia and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, emphasized the fact that the Government had physically occupied private property for the purpose of obtaining information. Applying traditional notions of trespass to the Fourth Amendment analysis, the high court stated, "[w]e 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." While the majority made clear that the trespass test was not the exclusive test, it declined to address to what degree the reasonable expectation of privacy test applied in digital privacy cases not involving a trespass.

A concurrence authored by Justice Alito and joined by Justices Ginsburg, Breyer, and Kagan, criticized the majority’s reliance on the trespass-based rule or what Justice Alito described as “18th century tort law.” Justice Alito would have analyzed the question presented by asking whether Jones’s reasonable expectations of privacy were violated by long-term GPS monitoring. He noted the panoply of new devices operating GPS technology, such as smart phones and other location-based services offered as social tools. In an environment of dramatic technological change, Justice Alito acknowledged that the best solution to privacy concerns may be legislative. In the absence of such guidance, Justice Alito’s concurrence suggests the exclusive application of the reasonable expectation test to all digital privacy cases.

An additional concurring opinion by Justice Sotomayor feared the majority decision would provide little guidance in cases of electronic or other novel modes of surveillance that do not depend on a physical invasion of property. Her concern touched less on the mode of surveillance than on the content of sensitive data collected. Accordingly, Sotomayor suggested a paradigm shift in the way that privacy issues are considered. In her view, the premise that the individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties is ill-suited to the digital age and should be reformed.

At a minimum, this case demonstrates the Supreme Court’s recognition of the need to preserve privacy in an increasingly digital age. Given the majority’s limited holding, however, many questions about digital privacy remain unanswered.

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Author: ABA Antitrust

Learn more about the ABA Section of Antitrust Law: http://ambar.org/antitrust

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