Supreme Court Justice Stephen Breyer invoked George Orwell’s novel 1984 as he heard oral arguments on Tuesday in a case about whether attaching a GPS device to a suspect’s car violates the Fourth Amendment.
The case involves Antoine Jones, a Washington nightclub owner suspected of drug dealing. Police and FBI agents attached a GPS device to his Jeep Grand Cherokee and prosecutors used the location data to convict him on cocaine-dealing charges, which led to a sentence of life in prison.
The Supreme Court is considering whether the police violated Jones’ Fourth Amendment rights against unreasonable search and seizure -- both in using an expired search warrant, but also in using the device at all.
The case could resonate more widely in a world being transformed by devices from smartphones to navigational aids that can track a person’s every waking move.
"If you win, you suddenly produce what sounds like 1984," Breyer said during arguments.
The novel describes a society where individuals have little freedom or identity, and the government plays a defining role in everyday life.
The justices focused the hour of arguments on how technology changes traditional law enforcement.
Chief Justice John Roberts drew a distinction between old means of surveillance -- such as trailing suspects in cars -- and the new GPS method.
"That [old method] was a lot of work. Here, [the police] just sit back," he said. "That seems to me dramatically different.... You could put a GPS device on all of us around the clock."
The Obama administration is fighting to uphold the conviction, saying such devices could be a boon for law enforcement officials fighting not only criminals, but terrorists. The government says using technology to enhance surveillance, without a warrant, was condoned in the 1983 case United States v. Knotts, a case in which police hid a beeper in a vehicle to track a suspect.
Roberts wasn't so sure that stood.
"The technology here is very different," Roberts said. "You get a lot more information from GPS than a beeper."
Both sides focused their arguments on whether GPS tracking violated Jones’s “reasonable expectation of privacy,” a criterion established by the 1967 Supreme Court decision in the wiretapping case United States v. Katz, which helped define when police need a warrant.
The Justice Department argued that monitoring someone in public, such as a car on a public street, is not a Fourth Amendment violation because it’s no different than a police officer trailing a suspect outside, which is perfectly in bounds.
Justice Ruth Bader Ginsburg questioned how that distinction would limit privacy. "Then the only thing that's secure is the home," she said.
The justices questioned how peoples' privacy expectations are evolving as technology changes, making it difficult to declare which methods do or do not violate privacy expectations.
"Pre-computer, pre-Internet, much of [privacy] resulted from the difficulty of traveling around and gathering up information," Justice Samuel Alito said. "There is a real change in this regard.... Technology is changing people's expectation of privacy."
He pointed to a future where "90 percent" of people join social networks and "have 500 friends."
But Justice Elena Kagan wanted to know if the reasonable expectation of privacy was really violated by this instance of GPS surveillance, given the police did not use it in the over-the-top way Jones' lawyer Stephen Leckar had described.
"This was not universal surveillance. It's limited surveillance of a suspect," Kagan said.
The justices pressed Leckar on whether he believed GPS surveillance is ever acceptable without a warrant. Leckar argued that said even three minutes of GPS tracking would constitute a Fourth Amendment violation.
"Could [police] get the same information from 30 deputies [devoted to surveillance]?" Justice Anthony Kennedy asked. "What you're saying is police have to use the most inefficient methods."
The justices frequently pointed to the lack of clear laws around monitoring others with GPS, an issue that has prompted legislation this year from Senate Judiciary Chairman Patrick Leahy, D-Vt., as well as Sen. Ron Wyden, D-Ore.
Scalia had his doubts that getting lawmakers to weigh in would really clarify anything.
"I can give you 535 reasons not to go to Congress," he said.