High court case on GPS surveillance could break new ground
By Joan Biskupic, USA TODAY
WASHINGTON – In a potentially groundbreaking case on high-tech tracking by police, the Supreme Court will decide whether constant surveillance is such an intrusion on people's lives that police need a warrant before attaching a GPS device to a person's car.
The Global Positioning System not only helps drivers find their way around, it can also allow for constant surveillance otherwise too costly for law enforcement.
The case, to be heard Tuesday, tests law enforcement's use of the latest technology to fight crime as it raises the specter of a "Big Brother" government knowing one's every move. GPS tracking lets police engage in round-the-clock surveillance — without a person's knowledge — over a prolonged period that could seldom be matched by cops on a beat or other traditional observation.
Global Positioning System receivers, originally developed for military use, rely on a constellation of satellites in fixed orbits. Receivers on the ground use satellite transmissions to calculate the latitude and longitude of a location. Data can be transmitted remotely to police computers and stored.
"A person who knows all of another's travels" through GPS, U.S. Appeals Court Judge Douglas Ginsburg wrote in the ruling that the high court will take up, "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."
Attorney Donald Verrilli argues no warrant is needed if travel done in public.
The Washington, D.C.-based appeals court ruled that the Fourth Amendment protection against unreasonable searches and seizures require police get a warrant before affixing a GPS device to a car or truck.
The federal Justice Department, appealing the warrant requirement, argues that drivers do not expect their movements to be kept private. "Officers do not conduct a 'search' when they observe matters conducted in the open, which anyone could see," U.S. Solicitor General Donald Verrilli tells the justices in his brief.
The dispute over the technology becoming ubiquitous on smartphones and vehicles could lead to a major decision regarding police tactics for decades to come.
The case, involving a Washington, D.C., nightclub operator who was investigated in a cocaine-trafficking case, has drawn a dozen "friend of the court" briefs from an array of outside groups all but one opposing the federal government.
Among those siding with the drug defendant, who was tracked for a month, is the Council on American-Islamic Relations, which says Muslim Americans have been increasingly subject to warrantless GPS surveillance, and Roger Easton, an inventor regarded by many as "the father of GPS." Other cases involving technology
The following Supreme Court cases that involve police use of technology form the backdrop of the Nov. 8 dispute over the use of GPS tracking:
•Katz v. United States, 1967: Establishing the Fourth Amendment standard that people are entitled to a “reasonable expectation of privacy” against electronic surveillance; the court ruled that the use of an electronic listening device attached to the outside of a public telephone booth, to gather information from a private conversation inside, constituted a “search,” requiring a warrant.
•United States v. Knotts, 1983: Finding that a person riding in car on public streets has no reasonable expectation of privacy in any movements from one place to another; the court permitted police use of a beeper to follow a car on public roads.
•United States v. Karo, 1984: Declaring that the use of a beeper to track information into a private residence — the device was used to track a can of ether — violated the Fourth Amendment.
•Kyllo v. United States, 2001: Holding that officers’ use of thermal imaging technology to detect heat radiating from within a home (where marijuana was being grown) was a “search” subject to the Fourth Amendment; that decision emphasized the sanctity of the home.
Lawyers for Easton, 90, and other GPS developers, say the tracking is done in such continuous and large-scale fashion that it defies comparisons to beepers and other electronic surveillance tactics previously reviewed by the high court.
The one group siding with the federal government, the New York-based Center on the Administration of Criminal Law, points to the cost benefits of satellite surveillance in tough financial times. It says GPS surveillance requires fewer personnel hours and less cost than having agents physically follow someone.
Anthony Barkow, the group's director, said in an interview that GPS surveillance is on the "constitutional" side because it reveals information that could be observed in public. Barkow acknowledged that "fear of Big Brother" could affect the justices, but he says that law enforcement should be able to take advantage of technology, within constitutional safeguards.
The Justice Department is urging the high court to reinstate the drug-conspiracy conviction of Antoine Jones, who was tracked with a GPS device over four weeks in 2005.
Federal agents, who had secretly put a GPS device on Jones' Jeep while it was in a public lot, used the evidence from Jones' travels to a stash house in Fort Washington, Md., to help win a conviction of conspiracy to distribute cocaine. Agents found large amounts of cocaine in the house and recovered about $70,000 from the Jeep.
Solicitor General Verrilli is urging the high court to rely on its 1983 ruling in United States v. Knotts, which said the use of a beeper to track a suspect driving to a drug lab was not a search under the Fourth Amendment. Verrilli says the lower court hearing Jones' appeal wrongly abandoned a longstanding line between private information and information that is "exposed to the public," for example, on roadways.
The lower court said, however, that a month of detailed tracking could not be considered "public" in the usual sense because it was unlikely anyone would actually have observed all of Jones' travels. Verrilli counters that information does not become "less public" simply because it is collected with in a more sophisticated technology.
The high court will also be looking at whether just the installation of the device violated Jones' rights. Justice Department lawyers say installing the GPS device was permitted because it didn't interfere with Jones' driving or take up any space inside the vehicle.
Stephen Leckar, representing Jones, tells the justices in his brief that unrestrained GPS monitoring has become "a grave threat to expressive and political association, as well as to the personal privacy and security of every individual in the country."
Leckar added in an interview, "I'm not saying the government can't tail you, but they can't track people relentlessly without a warrant. … Who wants to live in a totalitarian state when you're under constant electronic monitoring?"
The U.S. government tells the justices that law enforcement has not been abusing GPS technology and it is not even in widespread police use. "If 'dragnet' use of tracking technology" were to occur, Verrilli says, "its constitutional implications can be addressed at that time."