Monday, November 14, 2011

Government's Orwellian Defense of GPS Tracking

      Chief Justice John G. Roberts Jr. had a simple, direct question for the government lawyer defending the right of police to use a GPS device to track a suspect’s automobile for as long as a month without a search warrant. The government’s answer, after a moment of hesitation and a cloud of legalese, was at bottom also simple and direct — and scary in the extreme.
      Michael Dreeben, deputy solicitor general and the office’s senior specialist on criminal law, had started his Nov. 8 argument in United States v. Jones by contending that individuals have no expectation of privacy in their public movements. A GPS device, he insisted, does nothing more than Supreme Court’s decisions already permit police to do through human surveillance.
      Roberts was skeptical. Human surveillance requires a lot of work, but with the GPS police “just sit back in the station and they push a button whenever they want to find out where the car is,” he said. “That seems to me dramatically different.”
      Could police “put a GPS device on all of our cars, monitor our movements for a month?” Roberts asked later. “You think you’re entitled to do that under your theory?”
      Dreeben, with more than 80 Supreme Court arguments under his belt, appeared to be taken aback. “The justices of this court?” he asked. After Roberts said yes — provoking laughter in the courtroom — Dreeben realized he had no choice but to stick to his argument.
      Avoiding a direct yes or no answer, Dreeben replied that justices have no greater expectation of privacy on the public roadway than anyone else. “No problem under the Constitution?” the chief justice asked again, seemingly unconvinced.
      Roberts was not the only justice to be troubled. By the end of Dreeben’s argument and later rebuttal, every justice except Clarence Thomas — maintaining his customary silence — had joined in raising concerns about the implications of the government’s position.
      Could police put a GPS device surreptitiously on a person’s sport coat or overcoat, Justice Anthony M. Kennedy asked. Dreeben tried to deflect the question by saying the device could then track a suspect into the home, a privacy-protected sphere. Justice Ruth Bader Ginsburg picked up the thread. “Any of us could be monitored whenever we leave our homes,” she said. “So the only thing secure is the home.”
      Justice Samuel A. Alito Jr. picked up Roberts’ point about changing technology. “How do we deal with this?” he asked. “Do we just say, well, nothing is changed?” When Dreeben clung to his position, Justice Stephen G. Breyer joined in to raise the Orwellian implications of the government’s view. “If you win, you suddenly produce what sounds like 1984 from their brief,” he said referring to defendant Antoine Jones. “I understand they have an interest in perhaps dramatizing that, but maybe overly. But it still sounds like it.”
      Later, Justice Sonia Sotomayor teased out Altio’s suggestion that in time technology would allow government monitoring even without what Dreeben had acknowledged to Justice Antonin Scalia amounted to a “technical trespass” of placing a device on a car or on the person. “Under your theory,” Sotomayor told Dreeben, “you could monitor and track every person through their cell phone, because today the smart phones emit signals that police can pick up and use to follow someone anywhere they go.”
      By the time of Dreeben’s rebuttal, Justice Elena Kagan was troubled too, pouncing on his suggestion that with changes in technology people’s expectations of privacy also change. “That seems too much to me,” Kagan said, envisioning a “robotic device” that could track and report to police one’s movements 24 hours a day. “The notion that we don’t have an expectation of privacy in that . . . .,” Kagan said, “I’m not sure how one can say that.”
      The government was forced to defend an extreme position in the case because of a police foul-up of sorts. Police in fact had obtained a search warrant for the GPS device to drug suspect Antoine Jones’ car, but the warrant required it to be installed within 10 days and within the District of Columbia. Instead, police attached the device 11 days later when the car was parked in Maryland — effectively nullifying the warrant. The GPS tracking helped police follow Jones to a drug dropoff point, resulting in his conviction.
      The district court judge found no problem with the evidence, but the U.S. Court of Appeals for the District of Columbia Circuit, in an opinion written by conservative judge Douglas Ginsburg, ruled the GPS tracking amounted to an unreasonable search under the Fourth Amendment. In seeking to reinstate Jones’ conviction, the government had to defend the surveillance as warrantless. But in a fall-back position, the government argued that GPS surveillance be permitted as long as there was “reasonable suspicion” to justify the search, less than the customary probable cause requirement.
      By argument’s end, the court’s path to a decision was unclear, with justices apparently divided whether to ground a ruling on the trespass issue or to confront the broader privacy questions. Dreeben suggested the justices’ concerns about an Orwellian future could be addressed to Congress, but Jones’ attorney, Stephen Leckar, suggested there were “535 reasons” why that would not be a good idea.
      The decision is due by the end of June.


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