At the Supreme Court: Is GPS tracking of suspects too Orwellian?

Big Brother is coming, and there’s no point trying to hide.

That was the chilling warning that emerged during an hour-long oral argument at the US Supreme Court on Tuesday, where the justices took up a case examining the scope of Fourth Amendment privacy protections in the face of increasingly sophisticated surveillance technology.

At issue in US v. Jones is whether federal agents need a warrant to place a GPS tracking device on a suspect’s car.

Although the case involves the investigation of a suspected drug trafficker in Washington, D.C., the justices wasted no time posing an array of hypothetical examples echoing George Orwell’s novel “1984.”

“If you win this case, there is nothing to prevent the police or the government from monitoring 24 hours a day every citizen of the United States,” Justice Stephen Breyer told Deputy Solicitor General Michael Dreeben. “If you win, you suddenly produce what sounds like '1984.' ” 

“This case does not involve 24-hour surveillance of every citizen of the United States,” Mr. Dreeben responded. “It involves following one suspected drug dealer as to whom there was very strong suspicion.”

In the investigation of Antoine Jones, federal agents secretly attached a GPS tracker to his car. The device was accurate to within 50 to 100 feet. It generated location and speed data every 10 seconds while the car was in motion. All resulting data were automatically stored in a government computer database. The agents tracked Mr. Jones’s car for a month.

By studying the compiled information over time, agents were able to detect patterns in Jones’s daily routine – including frequent trips to a suspected stash house in a Maryland suburb.

When agents uncovered information suggesting Jones had received a large cocaine shipment, they used the GPS data to target a raid on the stash house. They recovered 97 kilograms of cocaine, nearly a kilo of crack cocaine, roughly $850,000 in cash, and equipment used to process and package narcotics.

Jones was convicted of a drug trafficking conspiracy and sentenced to life in prison.

On appeal, his lawyer argued that the warrantless GPS surveillance violated Jones’s reasonable expectation of privacy.

Government lawyers argued that there was no difference between the use of the GPS device and the use of earlier beeper technology that allowed agents to track a suspect shipment via a concealed radio transmitter.

The Supreme Court ruled in 1983 that the use of such a device did not violate Fourth Amendment protections because there was no reasonable expectation of privacy in the public movement of a shipment from one place to another.

The appeals court in Jones's GPS case declined to apply the 1983 beeper precedent. The appeals court said GPS surveillance offered more than just an aid to ongoing physical surveillance. It empowered the government to follow Jones 24 hours a day, seven days a week for 28 days. It provided data that allowed agents to identify the totality of Jones’s movements as well as patterns within his day-to-day travels.

“A person who knows all of another’s travels can deduce whether he is a weekly church-goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups – and not just one such fact about a person but all such facts,” the appeals court said.

The Obama administration is asking the high court to reverse the appeals court and allow the government to secretly install GPS devices without first obtaining judicial authorization.

Dreeben told the justices that there’s no need for the government to obtain permission from a neutral judge before planting a tracking device on a car because the car would be traveling only on public roads and in public areas.

Because law enforcement officials are free to conduct warrantless surveillance in public places, the GPS surveillance should not require a warrant either, he said.

“What would a democratic society look like if a large number of people did think that the government was tracking their every movement over a long period of time?” Justice Breyer asked.

Dreeben said there is no effective way for the court to draw a line allowing some GPS surveillance in public but not others. “Better that the court should address the so-called '1984' scenarios if they come to pass rather than using this case as a vehicle for doing so,” he added.

Jones’s lawyer, Stephen Leckar of Washington, urged the court to uphold the appeals court decision.

“Society does not view as reasonable the concept that the United States government has the right to take a device that enables them in pervasive, limitless, cost-free surveillance, to completely replace the human equation,” Mr. Leckar said.

“We are not asking to make the police less efficient than they were before GPS came into effect,” he said. “We are simply asking that the use of a GPS [poses] grave threats of abuse to privacy, [and] that people have an expectation that their neighbor is not going to use their car to track them.”

Early in the argument, Chief Justice John Roberts brought the privacy issue home to the high court in a direct and personal way. He asked Dreeben whether the government would need a warrant before placing GPS devices on “our cars.”

“The justices of this court?” Dreeben asked, a bit surprised.

“Yes,” the chief justice responded.

Spectators in the court erupted in laughter.

“The justices of this court when driving on public roadways have no greater expectation [of privacy],” the deputy solicitor general informed the high court.

“So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?”

Dreeben replied: “If the FBI wanted to, it could put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets.”

A decision in US v. Jones (10-1259) is due by next June.