Wednesday, November 16, 2011

Can the Police Install GPS Tracking Devices on People's Cars Without a Warrant?

A case was argued before the Supreme Court last week - U.S. v. Antoine Jones - which strikes at the heart of the Fourth Amendment right to privacy, specifically the prohibition of unreasonable searches and seizures.

In 2005, D.C. police, working with the FBI, installed a GPS tracking device on Jones' car without a warrant. Eventually, acting on information they had gathered, the police then did obtain a search warrant and found a huge stash of cocaine, firearms and cash.

Jones' lawyers argue that, under the Fourth Amendment, a warrant is necessary before installing GPS tracking devices on citizens' cars.

On the other side, the police argue that it's not necessary because the authorities could have tracked the suspect's car under existing law simply by assigning enough police officers to follow him. Justice Kennedy told the defendant's lawyer: "What you're saying is that the police have to use the most inefficient methods." As L. Gordon Crovitz of the Wall Street Journal points out, to put it another way, "wouldn't most Americans think it unreasonable to lock law enforcement into earlier generations of technology when criminals use the latest technology?"

This case highlights the evolving nature of privacy rights in the context of rapidly changing technology. Most of us instinctively cringe at the thought of GPS devices being installed on our cars whenever authorities might feel like it, but then again most of us already opt for GPS tracking devices in our cars voluntarily. And the police make a good point: How different is it, really, than just having a squad car follow a suspect around?

They're both reasonable arguments, which is why, in the end, it all comes down to defining social norms. It's those norms that the justices must ultimately ascertain in order to define what constitutes "reasonable".

Crovitz is right that, culturally, Americans are more and more frequently choosing to give up their privacy in exhange for technological benefits - whether it be Facebook, Foursquare, always-on smartphones, etc. - and to a large extent this is, indeed, the norm these days.

However, I'd like to make a counterpoint... the social norm here is more nuanced than simply, "people don't care about privacy". I would argue that there is still a cultural expectation against technology in many cases. For example, this is why in baseball there remains no instant replay for calling balls and strikes, or why many municipalities still don't issue traffic tickets completely based on cameras. Somehow, even though it's technologically possible, people nevertheless don't quite think it "seems fair". The public finds it undesirable. There is a social norm that electronic surveillance can still go too far, and that's particularly true when it comes to the authorities as opposed to private websites that allow you to opt-out. Of course, there is no opt-out from the police.

This isn't to argue that GPS tracking devices shouldn't be used at all on suspects; only that public law enforcement, in order to avoid a dangerous slippery-slope, ought to still get a warrant first.


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