RENEE MONTAGNE, HOST:
Location-tracking technology has changed the way we live, how we get to places, and how we find the location of others.
(SOUNDBITE OF TELEVISION SHOW "MODERN FAMILY")
TY BURRELL: (As Phil Dunphy) Claire would have killed me if she had known that I let Haley go off alone while I chilled in a bar with some undergrads, but I happen to trust my daughter. Also, I was tracking her location with the GPS on her phone.
MONTAGNE: That's the character Phil Dunphy, from the TV show "Modern Family." The high court is taking on a case that deals with GPS - a case that sounds less like a sitcom, and more like something from the movie "Enemy of the State."
(SOUNDBITE OF MOVIE: "ENEMY OF THE STATE")
GABRIEL BYRNE: (As Brill) In your phone was a GPS stat tracker. It pulses at 24 gigahertz.
WILL SMITH: (As Robert Clayton Dean) I don't know what that means.
BYRNE: (As Brill) It means the NSA can read the time off your wristwatch.
MONTAGNE: The Supreme Court today steps into the fast-changing world of new technology. At issue is whether the police must get a warrant from a judge before they can attach a GPS device to a car so they can monitor a suspect's every move for an indefinite period of time. As NPR legal affairs correspondent Nina Totenberg reports, the case could have enormous implications for privacy rights in the information age.
NINA TOTENBERG, BYLINE: Police, quite naturally, want to use technology to get the goods on the bad guys. And citizens, quite naturally, think that when they leave their homes, they still have some zone of personal privacy in their cars. This case presents that clash in vivid terms.
In 2004, a joint FBI-Washington, D.C., police task force began investigating suspected drug kingpin Antoine Jones. First they got a wiretap warrant, but Jones was careful about how he spoke on the phone. So then they put a GPS tracking device on his car and for 28 days, every time that car moved, its location was tracked by satellite, with the information sent every 10 seconds to the FBI.
The tracking led to Jones' arrest, plus the seizure of 97 kilos of cocaine, and $850,000 at a stash house. Jones was convicted of conspiracy to distribute drugs, but a panel of both liberal and conservative federal appeals court judges, here in Washington, unanimously threw out the conviction because the tracking device had been attached without a warrant.
The court said that tracking a car for such a long period, without court authorization, violates the Fourth Amendment's ban on unreasonable searches. The government appealed to the Supreme Court, contending that no warrant is required when a car is on public roads. And today, the Supreme Court hears arguments in the case.
WALTER DELLINGER: It's critical to realize that this case is not about whether the law enforcement can use GPS devices. It's about whether they should get a warrant.
TOTENBERG: Walter Dellinger represents Antoine Jones.
DELLINGER: If the Supreme Court gave a green light to it, any officer can install a GPS device for any reason on anybody's car, even if the officer thinks it would be interesting to see where Supreme Court justices are going at night when they leave the courthouse. No one would be immune from having GPS devices installed on their vehicles.
TOTENBERG: The government, however, contends that the Fourth Amendment only bans warrantless searches of private spaces - like the home, or the interior of a car, or a locked office desk. The Supreme Court has previously held that searches on the public streets - of trash, for example, put out for pickup - do not require a warrant.
And the government argues a GPS device is just an electronic extension of the old- fashioned human surveillance. Pat Rowan is a former federal prosecutor and assistant attorney general in the Bush administration.
PAT ROWAN: There's no Fourth Amendment implications for what a person is doing out in public space - whether they're walking down the street and being observed, or whether they're driving down the street and being observed.
TOTENBERG: Rowan concedes that everyone has what he calls an instinctive reaction that warrantless GPS tracking goes over the line.
ROWAN: But on the other hand, you are talking about a very clear line that the Supreme Court has laid down over a very long time - that what the police can observe in public, an individual doesn't have a reasonable expectation of privacy in. And this is the functional equivalent, they would argue, of having the police do a very effective, covert surveillance of an individual over a long period of time.
TOTENBERG: Rowan does say, though, that as a practical matter. it would be next to impossible to conduct a surveillance for a month without being detected. That's why the GPS is a game-changer.
ROWAN: For the police to be able to do this, it's a terrific boon.
TOTENBERG: So why not get a warrant first? Because to get a warrant, police have to show that they have probable cause to believe a crime is occurring, or has occurred. And the government says the GPS tracking is particularly useful at the early stages of an investigation, before probable cause can be established. Again, Pat Rowan.
ROWAN: You have a lead against a person, but it's not corroborated. You don't know what they're up to. This is a low-cost device that would allow the FBI - or any law-enforcement agency - to gather a great deal of information about their movements without having to go to a judge and justify their investigation.
TOTENBERG: That's exactly the point, says Walter Dellinger, the lawyer for the defendant in this case.
DELLINGER: The government's position is that any law-enforcement officer, in his completely unfettered and un-reviewed discretion, can choose to put this device on anyone's car and track what medical appointments you go to, what religious groups you meet with, what political activities you drive to. This is really an extraordinary undertaking, and one where the critical protection would be that a neutral magistrate has approved in advance whether there's actually some probable cause to believe that the person has committed a crime before you install a GPS device.
TOTENBERG: Dellinger has a second argument, not addressed by the appeals court, but that is before the Supreme Court. The Fourth Amendment to the Constitution bans not only unreasonable searches, but also seizures of property. He argues that placing the GPS device on the exterior of Antoine Jones' car constitutes a trespass of Jones' property. That argument actually appeals to prosecutor Rowan.
ROWAN: It just doesn't sound right that the exterior of your car or underneath your car - a device could be affixed to that, and that there's no expectation of privacy there.
TOTENBERG: Indeed, an unscientific sampling of federal prosecutors shows a real hesitation about how far to push the envelope with GPS devices. Former Bush Administration U.S. attorney David Kelley, who spent nearly 20 years as a federal prosecutor in New York, says he always assumed that a warrant was needed for a long-term tracking device.
DAVID KELLEY: The four corners of your car is yours. And you have a reasonable expectation of privacy in that.
TOTENBERG: Kelley concedes that requiring a warrant would mean that some bad guys would get away.
KELLEY: Well then, guess what? Tough luck. Go find another way to get the guy. And if you can't get probable cause, you know what, maybe you have no business getting into that car to put in that device.
TOTENBERG: While today's case involves GPS devices, it could have enormous repercussions for other devices in the information age. What about cameras that photograph people on the public streets? What about cell phones that can be tracked as long as they are on?
Lawyer Dellinger maintains those are different. The cameras are stationary, and the cell phones can be turned off. These are just some of the considerations facing the Supreme Court today.
Nina Totenberg, NPR News, Washington.
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