Stopping tracking in its tracks

“Aware­ness that the gov­ern­ment is watch­ing chills asso­ci­a­tional and expres­sive freedoms.”

— Jus­tice Sonia Sotomayor

“Dra­matic tech­no­log­i­cal change may lead to peri­ods in which pop­u­lar expec­ta­tions are in flux and may ulti­mately pro­duce sig­nificant changes in pop­u­lar attitudes.”

— Jus­tice Samuel Alito

When is a unan­i­mous deci­sion of the Supreme Court not really a unan­i­mous deci­sion at all? When do two Jus­tices who usu­ally agree take to call­ing each other’s argu­ments a ‘dis­tor­tion’, ‘highly arti­fi­cial’, and hav­ing ‘lit­tle if any sup­port.’ When is a minor­ity opin­ion really the major­ity opin­ion? The answer to each of those ques­tions can found in a deci­sion released by the United States Supreme Court on Monday.

In one of the more antic­i­pated deci­sions of the term, the Supreme Court had to deter­mine whether law enforce­ment agents can per­form elec­tronic sur­veil­lance on a sus­pect by plac­ing a GPS device on the suspect’s vehi­cle and track­ing his move­ments. The gov­ern­ment argued that because the GPS device was attached in a pub­lic place there was no intru­sion and there­fore no search war­rant was necessary.

What is imme­di­ately clear from the Supreme Court’s rul­ing is that a war­rant is nec­es­sary in order to con­duct the kind of sur­veil­lance uti­lized in this case. In fact, all nine Jus­tices agreed on that fact and the deci­sion will go down his­tor­i­cally as unan­i­mous. What is equally as clear is that there was a very clear split on just why a war­rant was nec­es­sary. The dis­tinc­tion is some­what con­vo­luted but because it has major impli­ca­tions, it is worth a closer look.

The major­ity deci­sion was writ­ten by Jus­tice Antonin Scalia and joined by Jus­tices Kennedy, Thomas, Sotomayor and Chief Jus­tice Roberts. While Scalia is often thought of as being one of the more con­ser­v­a­tive Jus­tices on the Court, in real­ity his opin­ions are con­sis­tently dri­ven less by a polit­i­cal ide­ol­ogy and more by his legal ide­ol­ogy of orig­i­nal­ism. True to that read­ing of the Con­sti­tu­tion, Scalia exam­ined the GPS implan­ta­tion to deter­mine whether it would have vio­lated the Fourth Amend­ment at the time the Fourth Amend­ment was adopted.

On first blush that would appear to be dif­fi­cult as the Bill of Rights was adopted in 1791 and there were nei­ther GPS devices nor auto­mo­biles at the time. Scalia points to the fact that, at the time of the adop­tion of the Fourth Amend­ment, it was con­sid­ered a vio­la­tion of a person’s rights and a search if the gov­ern­ment entered onto their prop­erty to con­duct an inves­ti­ga­tion. In other words, the tres­pass trig­gered the con­sti­tu­tional violation.

Jus­tice Alito, joined by Jus­tices Breyer, Gins­berg and Kagan, agreed that there was a vio­la­tion. But Jus­tice Alito thought it ‘highly arti­fi­cial’ to go to 18th Cen­tury stan­dards to reach a deci­sion on a highly mod­ern ques­tion. He pointed out that the the­ory of tres­pass trig­ger­ing a search and seizure vio­la­tion had been long ago aban­doned by the Supreme Court because tech­no­log­i­cal advances raised seri­ous Fourth Amend­ment ques­tions in sit­u­a­tions where there was no trespass.

Alito relied on the stan­dard that has been applied for decades in search and seizure cases — whether the per­son who was searched had an ‘expec­ta­tion of pri­vacy’ in the thing or place that was searched. In this case he con­cluded that the pub­lic does have a rea­son­able expec­ta­tion that a GPS device won’t be affixed to their car in order to fol­low their movements.

Both the major­ity opin­ion and Alito’s con­cur­rence cited seri­ous short­com­ings with the other side’s logic. Scalia points out that the ‘expec­ta­tion of pri­vacy’ test doesn’t make it clear where the expec­ta­tion lies. What if the police just fol­lowed the defen­dant for four weeks? What if the GPS unit was only there for two days? Alito says that these are ques­tions to be answered in sub­se­quent cases. But Alito’s con­cur­rence points out that the major­ity opin­ion wouldn’t apply to things like GPS mon­i­tor­ing through a smart phone since that would not require any trespass.

Into the breach steps Jus­tice Sotomayor who not only signs on to Scalia’s major­ity opin­ion but also writes a sep­a­rate con­cur­rence to say that she agrees with Alito too, but that the ques­tions he raises are weight­ier ques­tions for another day. Her con­cur­rence makes clear that this is just the first sor­tie into an area of pri­vacy that is con­stantly chang­ing as tech­nol­ogy advances around us. Future cases will fur­ther explore this area. As Jus­tice Sotomayor states, “But what­ever the soci­etal expec­ta­tions, they can attain con­sti­tu­tion­ally pro­tected sta­tus only if our Fourth Amend­ment jurispru­dence ceases to treat secrecy as a pre­req­ui­site for pri­vacy.” Only time will tell if the Court will ever make that fun­da­men­tal change.

David Hej­manowski is a mag­is­trate and court admin­is­tra­tor at the Delaware County Juve­nile Court and a for­mer assis­tant pros­e­cut­ing attorney.

Posted by Dave Hejmanowski on Jan 27 2012. You can follow any responses to this entry through the RSS Feed. Comments can be made below.