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News (Media Awareness Project) - US TX: Editorial: Court's GPS Ruling Was Correct but Incomplete
Title:US TX: Editorial: Court's GPS Ruling Was Correct but Incomplete
Published On:2012-01-30
Source:Dallas Morning News (TX)
Fetched On:2012-01-31 06:02:47

Some Supreme Court decisions hit like bombs, taking casualties and
creating vibrations for years. Citizens United was one; the expected
ruling this year on the Obama administration's health care reform
should be another.

Others creep past on cat's paws, content to curl up and wait for
someone to come by and rub their belly.

Last week's U.S. vs. Jones decision is a creeper. While billed as the
most important Fourth Amendment test in a decade, it mostly came and
went fairly quietly, with legal analysts left to sort out what
happened and what it meant.

Antoine Jones, a Washington nightclub owner, was suspected of drug
trafficking. A joint FBI-local police investigation led officers to
place a GPS device on his wife's car without a valid warrant. Jones,
followed 24 hours a day for four weeks, was arrested and convicted in
January 2008 and sentenced to life in prison.

His appeal, citing violation of his Fourth Amendment right against
unreasonable search and seizure, is what reached the Supreme Court.

The justices' 9-0 ruling that Jones' rights indeed had been violated
is the right one - but not the entire story. Justice Antonin Scalia
narrowed the scope of his opinion to the improper search, the placing
of the GPS device on property. The court rejected the government's
assertion that "search" did not apply because Jones forfeited his
"reasonable expectation of privacy" when he drove on public streets.

As far as it goes, obviously correct. We wish the court had gone all
the way to the end of the question, as separate concurrences written
by Samuel Alito and Sonia Sotomayor attempted. They sought to bring
the ruling into contemporary focus; Sotomayor, in particular, wanted
the court to tackle the question of privacy: "Physical intrusion is
now unnecessary to many forms of surveillance."

In other words, the acquisition and storage of GPS data is far more
ubiquitous than even in 2005, when the Jones case began, and
certainly more prevalent than could have been imagined when the
Fourth Amendment was written.

Consider the GPS-enabled smartphone resting this very moment in your
pocket or purse. Your TollTag. Every swipe of your ATM or credit
card. The dozen or so visits you make each day to sites like Google.

U.S. vs. Jones settles only a small part of the question. Yes, if a
law enforcement agency wants to track your movements via GPS, it
would be wise to make its case to a judge, who could then issue an
authorizing warrant. Or not, depending on the quality of the
government's probable cause.

More important for the next such case to reach the U.S. Supreme Court
- - as one almost certainly will - is what limitations the government
should face to access this vast trove of data piling up on a server
somewhere every moment of every day. This remains substantially unanswered.

Three views within one

The court was unanimous in its decision that the government violated
the Fourth Amendment when it attached a GPS device without a valid
warrant. But it split on the reasoning.

MAJORITY OPINION (Scalia writing for five justices): "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."

CONCURRENCE (Alito writing for four justices): "The use of
longer-term GPS monitoring in investigations of most offenses
impinges on expectations of privacy."

CONCURRENCE (Sotomayor writing for herself): "I would ask whether
people reasonably expect that their movements will be recorded and
aggregated in a manner that enables the government to ascertain, more
or less at will, their political and religious beliefs, sexual
habits, and so on."
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