How GPS Tracking Threatens Privacy

The Supreme Court considers the 4th Amendment implications of new surveillance technologies.

"If you win this case," Supreme Court Justice Stephen Breyer told Deputy Solicitor General Michael Dreeben during oral argument in U.S. v. Jones last fall, "there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States." That prospect, Breyer said, "sounds like 1984." 

Fortunately, the government did not win the case. But the Court’s unanimous decision, announced on Monday, may not delay Breyer's 1984 scenario for long. Unless the Court moves more boldly to restrain government use of new surveillance technologies, the Framers' notion of a private sphere protected from "unreasonable searches and seizures" will become increasingly quaint. 

The case decided this week involved Antoine Jones, a Washington, D.C., nightclub owner who was convicted of cocaine trafficking in 2008 and sentenced to life in prison based largely on information that investigators obtained by surreptitiously attaching a GPS tracking device to his Jeep Grand Cherokee. All nine justices agreed that a warrant was constitutionally required for this surveillance, but they offered two different rationales. 

The majority opinion, written by Antonin Scalia and joined by four other justices, emphasized the intrusion on Jones' car. "The Government physically occupied private property for the purpose of obtaining information," Scalia wrote. "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."  

The majority therefore concluded that it was unnecessary to resolve the question of whether Jones had a "reasonable expectation of privacy" regarding his travels on public roads. By contrast, the four other justices, in an opinion by Samuel Alito, said he did, given that investigators tracked all his movements for a month—a kind of surveillance that can reveal a great deal of information about sensitive subjects such as medical appointments, psychiatric treatment, and political, religious, or sexual activities. 

While Scalia's approach draws a clear line that cops may not cross without a warrant, it does not address surveillance technologies that involve no physical intrusion, such as camera networks, satellites, drone aircraft, and GPS features in cars and smart phones. If police had tracked Jones by activating an anti-theft beacon or following his cell phone signal, they could have obtained the same evidence without touching his property. 

Indeed, the Court developed the "reasonable expectation of privacy" standard precisely because technologies unknown to the Framers—telephones and eavesdropping equipment—made it possible to secretly collect sensitive information without trespassing on the target's property. Until the 1967 case Katz v. United States, the Court held that surveillance of telephone calls did not constitute a search unless it involved a physical intrusion. 

But the Katz test is notoriously fuzzy. While Alito thought a month of GPS tracking was clearly a search, for instance, he said "relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable." He added that even long-term monitoring might be acceptable without a warrant "in the context of investigations involving extraordinary offenses"—a loophole big enough to drive many GPS-tracked vehicles through. 

More fundamentally, the very technologies that threaten privacy also change people's expectations. "Even if the public does not welcome the diminution of privacy that new technology entails," Alito wrote, "they may eventually reconcile themselves to this development as inevitable."

But as Alito noted, there is another possible outcome: A public alarmed by the erosion of privacy can demand statutory limits on government surveillance, which then provide clear evidence of expectations "our society has recognized as reasonable." That is ultimately what happened with wiretapping, although only after the Court decided that Fourth Amendment rights were at stake. 

There is a chicken-and-egg problem here that reflects the circularity of the Katz test:  Privacy is expected when it's protected, and it's protected when it's expected. We need to expect more, or we will end up with less.

Jacob Sullum is a senior editor at Reason and a nationally syndicated columnist. Follow him on Twitter.

© Copyright 2012 by Creators Syndicate Inc.

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  • Old Bull Lee||

    Every time SCOTUS goes my way, they're one little step short. And years or decades from now those little steps will have big consequences.

  • Suki||

    Morning Links at 9:08AMish.

  • ||

    The ish is key.

  • Suki||

    +1

  • poetry||

    Half of them will be about SOTU.

    The other half will matter.

  • ||

    What if there's an odd number of links? What then, smart guy?

  • poetry||

    I'll just add one in the comments. If you add another, counteracting my one, I'll counter-counteract yours with another, and then i'll countercountercountercounter if you countercountercounter, and then I'll make pancakes!

  • ||

    I've gone cross-eyed.

  • Night Elf Mohawk||

    I know no one likes it, but what's the rationale behind keeping the government from knowing where you're going when you're moving around in public?

    Does the fact that it's enabled by technology rather than actual humans following you around make the difference?

  • ||

    The rational is that it's none of their fucking business.

  • Night Elf Mohawk||

    When do the actions of someone suspected of a crime become the government's fucking business (in reality, not in the "everyone has private security" world)?

  • Scruffy Nerfherder||

    When they have enough circumstantial evidence to justify a search warrant. As it is, that's a pretty low hurdle.

  • Heroic Mulatto||

    Don't forget "probable cause".

  • Suki||

    Don't they get to follow us around for "reasonable suspicion" now?

  • ||

    They can "detain" you for reasonable suspicion, and wait for you to do something that gives them probable cause to search you. Something like see you (allegedly) reach into your pockets, or (allegedly) get a signal from their K9, or (allegedly) smell weed inside your house from the sidewalk, or (allegedly) see you reaching under your car seat.

    Oh, and this behavior they (allegedly) witness does not have to be substantiated and can be written into their police report well after the search has been performed.

    Just ask our resident nationally-ranked trainer of strength athletes/cop.

  • Night Elf Mohawk||

    Where do they get the circumstantial evidence if they can't watch public spaces?

  • Barely Suppressed Rage||

    They can watch public spaces all they want. Sticking a remote tracking device on your car =/= "watching public spaces".

  • ||

    Serious questions: What about cameras mounted at intersections? Body scanners to search for weapons in NYC? Do those count as "watching public spaces"?

  • Colonel_Angus||

    Cameras that see only plainly visible: public.

    Scanners/detecting things that human senses can not: search.

  • mad libertarian guy||

    But didn't you know that cops have the ability to sense more than the average person?

  • gps tracking guy||

    and how can you prove this?

  • ||

    Not if the police are culpable for misbehavior.

  • Night Elf Mohawk||

    Well, Sullum wrote, "While Scalia's approach draws a clear line that cops may not cross without a warrant, it does not address surveillance technologies that involve no physical intrusion, such as camera networks, satellites, drone aircraft..." so the question of watching public spaces seems to be a potential issue for him.

    I don't know if "Sticking a remote tracking device on your car =/= "watching public spaces" was directed at me, but I never made the argument that they were equivalent.

  • poetry||

    When they can convince a judge to give them a search warrant.

  • Night Elf Mohawk||

    So they need a search warrant to watch someone move around in public?

  • Heroic Mulatto||

    The question, for me, is if the government watching someone move around in public for shits and giggles constitutes an "unreasonable search" as defined by the 4th amendment.

  • ||

    So they need a search warrant to watch someone move around in public?

    If by "watch" you mean "surreptitiously affix a GPS tracking device," then yes, they have to obtain a warrant first. At least under what used to pass for the law.

  • Night Elf Mohawk||

    No, by "watch" I mean "watch."

  • ||

    To watch as you happen past? Nah.

    But, if a mere prole were to follow you 24/7, stake out your house, etc., and generally keep you under surveillance, they would likely be breaking the law, and you could likely get a restraining order.

    Under the rule of thumb that the cops shouldn't be able to do anything that one of the peasants can't do, unless they get a warrant first, well, yeah.

  • Night Elf Mohawk||

    Yeah, I thought of the stalker law analogy, but it you don't know you're being stalked...

  • ||

    Yeah, I thought of the stalker law analogy, but it you don't know you're being stalked...

    And if you don't know you're slowly being poisoned by your wife, I guess they can't charge her either?????

  • Night Elf Mohawk||

    If no one knows about the poisoning, like no one knows about the stalking, it would be pretty hard for them to charge her.

  • Heroic Mulatto||

    Under the rule of thumb that the cops shouldn't be able to do anything that one of the peasants can't do, unless they get a warrant first, well, yeah.

    Private Investigators don't need a search warrant to trail you, do they?

  • Barely Suppressed Rage||

    Private Investigators don't need a search warrant to trail you, do they?

    See "state actor doctrine."

  • Scruffy Nerfherder||

    They are free to watch people all they want from a distance. The question is at what point does it become a "search"?

    It's a tough distinction to make since the capabilities of the police to follow your movements at a low cost far exceed those of just a decade ago. It will become even more difficult as newer capabilities come online, drones, cctv at every corner, etc...

  • Suki||

    OGP: What do they need for suspicion of gamboling?

  • Colonel_Angus||

    Not that I'm a stalker, nttawwt, as long as you're not trespassing...

  • robc||

    No one is discussing the fundamental problem.

    Eliminate "public" space and the issue goes away.

    Now, Im not an anarchist, so even I dont think it will all be eliminated, but Im okay with the police watching and following us inside a courthouse or capital building or equivalent.

  • Colonel_Angus||

    No one said the cops cunts can not watch public spaces.
    The way someone becomes suspected of a crime are along the lines of:
    The copcunts witness/discover something themselves.
    Someone with a credible claim or credible information who is not a crackhead rat tells them something.

    "rationale behind keeping the government from knowing where you're going when you're moving around in public?"

    There is a difference between following a suspect, and tracking everyone at all times. I think maybe a warrant should be required any time they focus on someone in an investigation.

  • ||

    I would agree with your last sentiment, if it didn't lead to the threshold for obtaining a warrant being lowered to an even more absurd standard.

  • NotSure||

    Don't worry Tony has assured me that if the government does not do these things then there will be a private tyranny that will dwarf any big government surveillance. So logically one must embrace big government.

  • o3||

    u mean like private security contractors?

  • o4||

    maybe NotSure refers to the corporate wars in africa, over diamonds & natural resources, employing private militias.

  • Suki||

    I thought only one corporation controlled all diamond resources in Africa?

  • o3||

    deBeers controls south african diamond mining & buys (blood) diamonds from other countries

  • ||

    [citation please]

  • Matt||

    >private security contractors
    >security contractors
    >contractors

  • o4||

    ???
    ??
    ?

  • Suki||

    Profit!!!

  • Matt||

    I'm fairly certain 1984's inner party could only dream of such surveillance. Winston often traveled to the prole's part of town (where he technically wasn't allowed) to purchase items such as razor blades that he couldn't get otherwise.

  • ||

    Orwell's way of being off the grid.

  • protefeed||

    The surveillance in 1984 was way more intrusive than what we have currently. Which part of a government telescreen in your residence that can observe your every movement sounds like the present?

  • Dude!||

    cell phones!!!

  • Matrix||

    Remember last week when a woman refused to give up her password to police to decrypt her computer so they could access possibly damaging files?

    Judge orders defendant to decrypt laptop.

    Fanfuckingtastic...

  • The Question of Auban||

    "so prosecutors can use the files against her in a criminal case."

    Wait a second - what about pleading the 5th? Isn't this a clear case where the 5th Amendment would apply?

  • Judge Blackburn||

    NO!

  • The Question of Auban||

    She should conveniently "forget" everything she knows about encryption until after the case is over. I remember a certain First Later who later became Secretary of State who did that kind of thing in a big case. "I don't recall."

  • Matrix||

    that was what I was thinking.

    Also, I think there should be an encryption that if you enter a certain secondary password, it will zero fill your drive instead of unlocking it.

  • Colonel_Angus||

    Top Men will never allow that. It would most likely violate discovery laws, and therefore a product like that would probably be illegal to use.

  • ||

    ""Top Men will never allow that.""

    Top Med use that technique.

    Should could give them wrong information and claim she "mis-spoke", then babble about you have the right to be wrong.

  • ||

    ""Should could ""

    She could...

  • Brett L||

    I'm totally building this.

  • robc||

    You could put biometrics on your laptop that wont decrypt if you are under duress. But its a little bit science-fictiony right now.

  • ||

    Trigger a program that just continually overwrites the hard drive until the battery runs down, and you'll have something.

    Call it "Brickmaker".

  • The Question of Auban||

    This is absurd - isn't a password "testimony?" What if she does nothing? This is fucking absurd!

  • protefeed||

    Her lawyer can and should advise her to refuse to divulge the password by invoking the Fifth Amendment, and appeal this insanely wrongheaded judicial decision up the appeals ladder.

  • Suki||

    Sounds like a rerun of the Kevin Mitnick story.

  • Night Elf Mohawk||

    It may happen that you are forced by somebody to reveal the password to an encrypted volume. There are many situations where you cannot refuse to reveal the password (for example, due to extortion). Using a so-called hidden volume allows you to solve such situations without revealing the password to your volume.

    The principle is that a TrueCrypt volume is created within another TrueCrypt volume (within the free space on the volume). Even when the outer volume is mounted, it should be impossible to prove whether there is a hidden volume within it or not*, because free space on any TrueCrypt volume is always filled with random data when the volume is created** and no part of the (dismounted) hidden volume can be distinguished from random data. Note that TrueCrypt does not modify the file system (information about free space, etc.) within the outer volume in any way.

    http://www.truecrypt.org/hiddenvolume

  • ||

    The judge ordered Fricosu to surrender an unencrypted hard drive by February 21. The judge added that the government is precluded "from using Ms. Fricosu's act of production of the unencrypted hard drive against her in any prosecution."

    Huh?

  • Brett L||

    Just because she knows the password, doesn't mean without further evidence that the information is hers, I think. They still have to prove that there is a link from information obtained on the computer to the defendant. Which is trivial because it was confiscated from her bedroom. Its a way of splitting the baby on the 5th.

  • ||

    Ah. OK, that makes "sense" now.

  • The Question of Auban||

    I am getting very close to wanting to dump all Google products - including my Android Phone. And I love their stuff - but .......

    http://www.washingtonpost.com/....._comboNE_b

  • Brett L||

    Google makes money by aggregating and selling info like this, those are their customers. Consumers of free Google products are not their customers, thus they'll screw the consumer of the free product to please their customers.

  • poetry||

    half-true. google isn't stupid – they're not going to screw their source of revenue.

  • The Question of Auban||

    On Halloween of last year they screwed over users of Google Reader. I don't use that service any more. How many other services are they going to screw up?

  • Brett L||

    They might decide that losing 18% of their giant base of user preferences is okay, especially if 38% would have opted out given a choice.

  • The Question of Auban||

    I am also a consumer of one of their paying services. I have an Adwords Account.

  • Brett L||

    You can be both.

  • Suki||

    The article says this may come under government scrutiny. It is none of the government's business. If Google pisses off enough people, the problem self corrects.

  • The Question of Auban||

    They have certainly pissed off THIS consumer of their products.

  • Suki||

    +1

  • poetry||

    this doesn't bother me. i wish every company knew what i personally liked and catered to my tastes.

    when i'm using the internet, i don't consider myself "in private."

  • The Question of Auban||

    If I knew it would go no further than Google it would not bother me as much. But when you combine that much info in the hands of a single company with an overreaching government that likes to spy on its citizens - that is a recipe for disaster.

  • nobody||

    I'm with poetry. The Facebook timeline, on the other hand, I find creepy. Apparently I'm more comfortable with faceless companies knowing the 'real me' than I am with my friends and family having access to that information.

  • The Question of Auban||

    The reason I refused to join Google Minus is the same reason I don't have a Facebook account.

  • Tim||

    "We control life, Winston, at all its levels. You are imagining that there is something called human nature which will be outraged by what we do and will turn against us. But we create human nature. Men are infinitely malleable."

    http://en.wikiquote.org/wiki/Nineteen_Eighty-Four

  • Ron, Paul||

  • Attila the Huh||

    Huh?

  • robc||

    Im pretty sure he SFed the link. But considering he is almost as old as my Dad, that isnt horrible.

  • ||

    He added that even long-term monitoring might be acceptable without a warrant "in the context of investigations involving extraordinary offenses"—a loophole big enough to drive many GPS-tracked vehicles through.

    See, here's where Alito failed the founders. Any investigation involving extraordinary offenses should be able to procure a warrant, unless the "investigation" is nothing more than a fishing expedition. And in those cases, I thought the government was going the entrapment route for something new rather than trying to actually solve the crime that really occurred.

  • ||

    I thought the government was going the entrapment route for something new rather than trying to actually solve the crime that really occurred.

    The entrapment route is used to make sure someone commits a crime. Without the crime LEO don't have anything to do.

  • sarcasmic||

    If you disobey authority and sell unapproved chemicals to willing buyers who use them for pleasure, you can be locked in a cage for life.

    If you have a history of beating the shit out of people for pleasure, authority may give you a job that involves carrying a gun and going after people who sell unapproved chemicals to willing buyers who use them for pleasure.

  • Rich||

    We need to expect more, or we will end up with less.

    Expect, demand, ensure.

    If you have never actually read _1984_, now is the time. It is a fast read chock full of wonderful ideas.

  • ||

    ""We need to expect more, or we will end up with less.""

    Absolutely. It IS up to the citizenry. So basically we are screwed.

    1984 and Animal farm are must read book.

  • ||

    Wow. I would have bet 3-4 in allowing the survellience. I am glad I am wrong. I haven't gotten a chance to look at the reasoning. I am sure I will be appalled.

  • ||

    the problem is... there IS NO right to privacy under the federal constitution. it would be wicked awesome if there was, but there isn't.

    many states recognize a right to privacy (such as my own), and thus it was never even a question whether such tracking requires a warrant, nor did it need to get to the scotus in my state ... . State v. Jackson, 150 Wn.2d 251 (2003) continues to erode federalism and insert itself more and more into our lives, this "hole" in the constitution becomes more and more apparent, and problematic

    sadly, as the federeal go

  • ||

    Ninth Amendment: The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people. That's where the right to privacy is mentioned. You think you don't have the right to close your bedroom door or to seal an envelope? I think the idea that there is no right to privacy is a wacky way of arguing against abortion. There is no shortage of good reasons to argue against abortion--why anyone thinks 'there is no right to privacy' is a good argument is beyond me.

  • Heavy Equipment Shipping||

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