The Supreme Court will hear oral arguments on Tuesday in the case of a Washington nightclub owner convicted of dealing cocaine in part based on evidence from a GPS device attached to his SUV without a warrant.
Both sides see high stakes in United States v. Antoine Jones, a case examining the line between security and privacy, which is increasingly obscured by new technologies. Depending on which side is arguing, the case could seriously hamper investigations of criminals and terrorists alike, or it could lead to police using your own cell phone to track your every move.
Seven years ago, nightclub owner Antoine Jones came under police and FBI suspicion of drug dealing.
Investigators attached a GPS device to his Jeep Grand Cherokee and collected data about where he drove for four weeks, according to court filings. But they didn’t comply with the terms of their warrant, allowing it to lapse and violating geographical restrictions.
Nonetheless, prosecutors used GPS data—which showed Jones visiting a stash house—to prove their case, along with other evidence. Jones was sentenced to life in prison for conspiracy to distribute nearly 100 kilograms—200 pounds—of cocaine.
The D.C. Circuit Court of Appeals reversed the conviction and sentence, ruling it violated Fourth Amendment rights on warrantless searches. The Obama administration appealed, and the case landed before the Supreme Court.
The Supreme Court, in its June filing accepting the case for review, said it would consider two questions: Did the warrantless use of a tracking device to monitor a vehicle’s movements on public streets violate the Fourth Amendment? And, did the violation take place in the act of attaching it?
The legal fight is over what's “reasonable.”
Both sides focus 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 government says Jones did not have a reasonable expectation of privacy because he was in public. “When police officers acquire that information, they do not conduct a search within the meaning of the Fourth Amendment,” the Justice Department writes in its brief.
But Jones’s side points out that the GPS device was attached surreptitiously and “generated and stored a unique form and quality of data that was not exposed to the naked eye.” For those reasons, investigators violated Jones’ reasonable expectation of privacy, the filing says.
The nature of GPS technology is a key part of the debate.
The government says using technology to enhance surveillance, without a warrant, was condoned in a 1983 case United States v. Knotts, a case in which police hid a beeper in a vehicle to track a suspect.
“That's much different than the government using military satellites to follow you,” says Kendall Burman, senior national security fellow at the Center for Democracy & Technology, which filed a brief in support of Jones. GPS devices “not only supplant human observation, but also generate a form and quality of evidence that visual observation could not produce,” Jones’s brief said.
The case has rallied academics and activists in both camps. One side raises Orwellian threats.
“Where people go reveals a great deal about them. It can reveal every doctor’s appointment. It can reveal who your friends, lovers, and family are,” said Catherine Crump, a staff attorney for the ACLU. Condoning warrantless GPS tracking is “an incredibly serious reduction in the amount of privacy people expect.”
Innocent people would soon be tracked, advocates say.
“You no longer need physical man-hours dedicated to surveillance,” says Marcia Hoffmann, senior staff attorney at Electronic Frontier Foundation. “In theory, the government can track everyone that way. There’s nothing to stop them.”
A bad outcome could liberate cell-phone data, advocates warned.
“The potential here for government to use a wide variety of ways to track individuals without a warrant is really concerning,” said Burman. “It speaks to whether government can track people's use of personal information from just a personal cell phone.”
The other side has grave warnings, too.
Requiring warrants for GPS tracking would “seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism, and other crimes,” the U.S. brief says.
Red tape shouldn’t separate police from vital technologies, security advocates say.
“Law enforcement has struggled to keep up on technology in a world where criminals are increasingly high-tech,” said Anthony Barkow, the head of Center on the Administration of Criminal Law at New York University’s law school. “The fact is, terrorists use the Internet.”
Capitol Hill has shown an interest in safeguarding location data.
Sen. Ron Wyden, D-Ore., and Rep. Jason Chaffetz, R-Utah, introduced the "Geolocation Privacy and Surveillance Act" in June, requiring a warrant when investigators obtain location data from a company or install a tracker to collect it themselves.
A bill from Senate Judiciary Chairman Patrick Leahy, D-Vt., would restrict the government from obtaining GPS data from companies without a warrant. It also says government may not “access or use an electronic communications device to acquire geolocation information” without a warrant.
A bill from Democratic Sens. Al Franken of Minnesota and Richard Blumenthal of Connecticut focuses on location data collected by device by technology companies, such as application makers and device manufacturers, requiring they get consent to track that information.
The flurry of legislation comes as communications firms, Internet companies, and many lawmakers call for an update to the Electronic Communications Privacy Act of 1986 to address the latest technologies.