WASHINGTON -- The justices appear poised to go big or go home when it comes to protecting privacy rights against digital intrusion.
Antoine Jones, a nightclub owner in Washington, D.C., is challenging his conviction for drug trafficking, asserting that the police violated his Fourth Amendment rights when, without a valid warrant or his consent, officers placed a GPS device on his car to track his movements on public streets. In taking United States v. Jones, the Supreme Court signaled its interest in seriously revisiting -- and , after almost three decades -- the question of whether advances in technology alter an individual's reasonable expectation of privacy.
During oral argument Tuesday morning, Deputy U.S. Solicitor General Michael Dreeben argued that the GPS-assisted, 24-hour surveillance of Jones by the police over the course of 28 days was no different than the rudimentary tracking by beeper that the Court blessed in a 1983 decision.
"That was 30 years ago," said Chief Justice John Roberts, who was the first of nearly all his colleagues to express deep doubts about the government's argument. Advances in technology have allowed police to go from actively listening to a beeper as a helicopter follows the suspect's car from above to being able "to just sit back in the station and push a button whenever they want to find out where the car is," the chief stated. "That seems to me dramatically different."
Roberts' opening question revealed a divide between a majority of the other justices and Justice Antonin Scalia over how to categorize what they all appeared to believe was a Fourth Amendment violation. Most of the justices abide by the Court's 1967 decision that the state violates the Fourth Amendment when a warrantless search impairs an individual's reasonable expectation of privacy. Scalia, however, made clear that he does not "think that was the original meaning of the Fourth Amendment."
But that hardly took the pressure off Dreeben.
Whatever gloss the liberal Warren Court put on the Fourth Amendment forty-plus years ago, Scalia reminded Dreeben that its text still says that "the people shall be secured in their persons, houses, papers and effects against unreasonable searches and seizures." As Scalia understood it, the police, by surreptitiously placing the GPS device on Jones' car, technically committed a trespass “and thereby render[ed] the owner of the car not secure in his effects," making whatever evidence was gathered from the device the results of an unreasonable search.
Justice Samuel Alito, not for the first time, found Scalia's originalist rationale unsatisfying. For Alito, the Internet age has made privacy more legally salient than ever. "With computers, it's now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets," he said, suggesting that the surveillance state envisioned in "1984" could come to pass if the Court decided this case without distinguishing between being tracked via GPS and being tailed on the sidewalk.
"If this case is decided on the ground that there was a technical trespass," Alito said, "I don't have much doubt that in the near future it will be probable -- I think it's possible now in many instances -- for law enforcement to monitor people's movements on public streets without committing a technical trespass."
Justice Stephen Breyer amplified Alito's concern. "If you win this case," Breyer said to Dreeben, "then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States." And that's a job that can be done by tireless computers, not fallible human beings, he emphasized.
Indeed, human fallibility was on full display when Jones' criminal defense attorney, Stephen Leckar, stood to make his case. Rather than recognize that the justices were gearing up to give him a broad victory based on the reasonable-expectation-of-privacy standard, he stubbornly persisted in urging them to make a narrow ruling that the police had unlawfully seized Jones' property by installing the GPS.
At first, Scalia sought to protect Leckar from Alito's insinuations that such a ruling would be inadequate. But when Leckar refused to follow Scalia's guidance that the constitutional issue arose from a search and not a seizure, Scalia lost his patience. "Do you have any case involving seizure of data floating in the air," he asked, complete with gestures to demonstrate futile grabbing at incorporeal information uncontemplated by the framers of the Fourth Amendment.
Even Justice Sonia Sotomayor, who seemed most concerned that a decision in favor of the government could facilitate a rise of the machines, expressed her exasperation with Leckar's suggestion that they could determine the constitutionality of omnipresent surveillance by looking to the size of the city utilizing such techniques. "What an unworkable rule tethered to no principle," she said.
By the time Leckar had finished his argument, the justices seemed so disenchanted by the limits of this particular human being that they might consider calling the GPS tracking constitutional and leaving it up to Congress to legislate away the robot apocalypse.
Only then, perhaps, did Leckar save the species.
"In this particular case, I could probably give you 535 reasons why not to go to Congress," Leckar said.
The Court will hand down its decision in United States v. Jones by the end of June.