Police Surveillance - There's An App For That?

I’ll admit it.  I feel naked without my Blackberry.  Even going down to the food court in my building sans smartphone is enough to send a surge of stress hormones through my veins.  What if a client needs me while I’m in line for a burrito?

I suspect I’m not alone.  Indeed, I’m sure there are even plenty of criminals who wouldn’t think of leaving home without their smart phone, tablet, mobile hot spot or GPS.  But as the Supreme Court recently highlighted in United States v. Jones, being a technophile has a downside for the criminally inclined in our society.

The issue in Jones was whether a police task force violated Antoine Jones’s civil rights by attaching a GPS unit to his wife’s Jeep Grand Cherokee and tracking his movements for four weeks.  Because the police had not acted under the authority of a warrant, all nine justices agreed that evidence showing Mr. Jones’s frequent trips to his alleged co-conspirators’ stash house should have been excluded during his drug distribution trial.

In analyzing this issue, the lower courts had focused on whether Mr. Jones had a “reasonable expectation of privacy” in his daily travels.  For the five-justice majority, however, the dispositive fact had nothing to do with Mr. Jones’s expectations.  Instead, the majority held that the physical attachment of the GPS tracking device to the Jeep necessarily qualified as a search.  It explained: “The government physically occupied private property for the purpose of obtaining information.  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.”  Because the police had conducted a “search,” the Court reasoned, they needed a warrant (or an exception to the warrant rule).

Justice Alito rejected this approach.  Writing for himself and three colleagues, he criticized the “artificial” distinction between a GPS unit attached to the car by police and a tracking unit brought into the car voluntarily by a suspect.  As Justice Alito observed, “the Court’s reason­ing largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation). . . .  [U]nder the Court’s reasoning, this conduct may violate the Fourth Amendment.  By contrast, if long-­term monitoring can be accomplished without committing a technical trespass—suppose, for example, that the Fed­eral Government required or persuaded auto manufactur­ers to include a GPS tracking device in every car—the Court’s theory would provide no protection.”

So what is the technophile criminal to do?  Although Jones does not allow the police to attach a GPS device to his car, it suggests that they can monitor him without obtaining a warrant through other GPS devices he carries voluntarily – such as his navigation system, his OnStar, his satellite radio, his smartphone or his tablet.  In other words, police can now avoid the warrant requirement by getting GPS data directly from a suspect’s GPS service provider.

Or can they?  Jones will probably not be the Court’s last word on the permissibility of GPS surveillance.  Because the Jones Court concluded that physically attaching a GPS device is always a search, it did not need to consider whether gathering location data from a service provider in a non-intrusive manner violates a suspect’s reasonable expectations of privacy.  Five justices – the four who rejected the majority’s physical-intrusion approach plus Justice Sotomayor, who joined the majority but also wrote a concurring opinion – have suggested that “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.”  What these justices mean by “longer term” and “most offenses” is anyone’s guess.  These issues will likely reach the Court in a few years.

Meanwhile, Jones puts GPS service providers in an awkward position.  Should they save data showing their customers’ movements?  Should they comply with police requests for that data voluntarily?  What disclosures are necessary to customers?  What kind of liability will they face if the Court later determines that people have a reasonable expectation of privacy in their GPS data?  There are no easy answers to these questions.

As for me, all this thinking is making me hungry.  If you need me, I’ll be down at the food court.  Just shoot me an email.