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George Orwell's "1984" was very much on the minds of the Supreme Court today. The justices grappled with a question that pits the use of technology in law enforcement against individual privacy interests. At issue is a case testing whether police must obtain a warrant before putting a GPS tracking device on a suspect's car. NPR legal affairs correspondent Nina Totenberg reports.
NINA TOTENBERG, BYLINE: The FBI placed the tracking device on the car of suspected drug kingpin Antoine Jones. It pinpointed the car's location every 10 seconds, 24 hours a day for nearly a month. That led to the seizure of cocaine and cash used to convict Jones.
A federal appeals court, however, set the conviction aside because police had not obtained a valid warrant before putting the device on his car. The government then appealed to the Supreme Court. On the courthouse steps today, lawyer Steve Leckar, representing Jones, put his argument this way.
STEVE LECKAR: There's 880,000 law enforcement agents in the United States. Do citizens honestly believe that these people should have the unfettered discretion to put these pervasive, robotic search devices on people's cars without first going to a judge and saying, do I have your permission to do it?
TOTENBERG: Inside the court, the justices had their knives out for both Leckar and the government's lawyer, Deputy Solicitor General Michael Dreeben. The difference was that this was Dreeben's 80th argument before the court, and he skillfully batted back the justices' questions while Leckar had never argued in the Court before.
Dreeben urged the court to stick to the line it has drawn in the past: no warrant is needed for surveillance of activities conducted on public property. Chief Justice Roberts seemed skeptical about applying the same rationale to new technologies. Roberts: Do you think you could put a GPS device on our cars and monitor us? Answer: Under our theory and this Court's precedents, the justices of this Court, when driving on the streets, have no greater expectation of privacy against a GPS device than they would if the FBI followed them around the clock for a month.
Justice Breyer: If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day, the public movements of every citizen in the United States, a scenario that sounds like 1984. Justice Sotomayor: Tell me what the difference is between this and a general search authority of the kind that outraged the Founding Fathers and inspired the Fourth Amendment ban on searches without court authorization. Answer: This is not a search. And in an era of technological advances, people have different expectations of privacy.
That seems too much for me, interjected Justice Kagan, suggesting that people would think their privacy interests are violated by having a robotic device monitoring their movements 24 hours a day. Justice Alito: It seems to me the heart of the problem is that until the Internet and computer age, it was very difficult to gather private information about an individual. But with computers, it's now so simple to amass enormous amount of information about people. So how do we deal with this?
Chief Justice Roberts: Your argument is it doesn't depend how much suspicion you have. It doesn't depend how urgent it is. You can do it, period. It doesn't have to be limited any way. Answer: That is correct. Justice Ginsburg: Is getting a warrant difficult? Not in this case, conceded Dreeben, but a warrant requires a showing that there's probable cause to believe a crime has occurred. And police most often use GPS devices at the early stages of an investigation, before there's evidence of a crime.
Justice Sotomayor: How many GPS devices are used this way? Dreeben said he didn't know about local and state use, but the number used by the feds was in the low thousands last year. Following Dreeben to the lectern, lawyer Leckar contended that because the GPS was placed on Antoine Jones' jeep, it was a trespass on his property and amounted to an unconstitutional seizure; a commandeering of his car to provide data. The justices however, were looking for how to address a broader question.
Justice Kennedy: What's the difference between putting a GPS device on a car and placing 30 deputies along a route to conduct a surveillance? It seems to me you're saying police have to use the most inefficient methods. Answer: The difference is that the GPS poses a grave threat to privacy. Because Antoine Jones had control of his car, he had a reasonable expectation it would not be used to monitor him.
Justice Ginsburg: How is a surveillance camera any different? Answer: There is no physical invasion as there is with a GPS device. Justice Kagan: I'm told that if somebody goes to London, there are so many cameras that the police can put together snapshots of where everybody is all the time. Answer: It's pretty scary. I wouldn't want to live in London. Justice Scalia, caustically: Well, it must be unconstitutional if it's scary. Nina Totenberg, NPR News, Washington.