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The court's decision that use of a GPS tracking device constitutes a search relied on property rights and did not address the question of privacy in an increasingly online world.
The Supreme Court’s Jan. 23 decision holding that police violated a suspect’s Fourth Amendment rights by attaching a GPS tracking device to his car sounded — at first blush — like good news for privacy advocates.
But the case was decided on the issue of old-fashioned property rights, and the question of how those rights apply to privacy in an online world has yet to be answered.
It would be better for Congress to spell out those rights rather than leave the courts to struggle in applying old concepts to new realities.
“It is almost impossible to think of late-18th century situations that are analogous to what took place in this case,” Justice Samuel Alito wrote.
Although the justices were unanimous in the ruling, which upheld an appeals court decision that overturned the drug trafficking conviction of a Washington nightclub owner, they split over their reasons. The majority opinion joined by Chief Justice John Roberts and justices Antonin Scalia, Anthony Kennedy, Clarence Thomas and Sonia Sotomayor, avoided the issue of technology and held simply that in placing the device on the car the police encroached on personal property, and this constituted a search that required a warrant.
But in a separate concurring opinion joined by justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Alito found the majority’s reasoning a stretch. Alito’s opinion struggles to map 18th century constitutional protections to 21st century technology, and unfortunately comes up short.
Alito’s opinion relies on expectations of privacy and recognizes that these expectations change with new technology. “Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes,” he wrote.
The limits of our expectations and protections now are in flux, and the court for the most part is working without guidance from Congress and the states on where those limits should be. “The best that we can do in this case is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated,” Alito wrote.
But he could come up with no clear standard for what constitutes an unreasonable intrusion.
“In the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical,” he wrote. “Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.”
Occasional, short-term use of GPS tracking might be all right, but “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”
This standard of “longer-term monitoring” is satisfying neither for privacy advocates nor for police and lawyers, and the justices probably were wise to avoid resting their decision on it.
The issue of what level of privacy we have a right to expect in our online lives, both from law enforcement and from companies, remains to be decided. The GPS case provides some useful pointers, but clear and specific laws on personal privacy rights would be better in deciding these issues.
“New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile,” Alito wrote in his opinion. “And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”
Either way, we should know what the rules are.
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