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The Supreme Court weighed in today in the debate over privacy in the information age. It ruled that police must obtain a warrant from a judge before placing a GPS tracking device on a car. The ruling came in the case of a drug investigation conducted by a joined FBI-Washington, D.C. police task force. The court's decision may have been unanimous, but NPR legal affairs correspondent Nina Totenberg reports that three separate opinions on the legal rationale showed plenty of disagreement.
NINA TOTENBERG, BYLINE: The FBI placed a GPS tracking device on the car of suspected drug kingpin Antoine Jones. And for 28 days, every time that car moved it was tracked by satellite with the information sent every 10 seconds to the FBI. The tracking led to the seizure of 97 kilos of cocaine and $850,000 in cash. Jones was convicted of drug trafficking and sentenced to life in prison.
But today, the Supreme Court reversed the conviction because law enforcement authorities had failed to get a valid warrant before installing the tracking device. While the court's decision was unanimous, its reasoning was not, nor did the justices lined up along the usual liberal conservative lines.
Justice Antonin Scalia, usually classified as a conservative, wrote the court's opinion, declaring that because the tracking device was physically placed on Jones' property, at a minimum, it was a search within the original meaning of the Constitution's ban on searches of property without a warrant. Justice Sonia Sotomayor, usually categorized as a liberal, provided the fifth vote for that rationale, but suggested that in the modern information age, she may be willing to go much further.
And four justices, led by the usually conservative Justice Samuel Alito, said the property rationale makes no sense and disregards a half century of Supreme Court doctrine. To approach the question as a question of trespass on private property, said Alito, is simply unwise. What matters, he said, is the reasonable expectation of privacy in a modern world. What good is it, he asked, if a warrant is required to put a GPS device on a car for a short period, but no warrant is required when a person can be tracked for a much longer period by a remote control or with aerial surveillance? The court's decision, thus, is a narrow one and leaves open some of the most vexing privacy issues in the digital age. Smartphones, for instance, can disclose an individual's location and email contacts are similarly recorded by providers. But today's ruling provided no definitive answers as to whether the government must obtain a warrant for access to either.
George Washington University law professor Orin Kerr is an expert in the field of technology.
ORIN KERR: It leaves open how the Fourth Amendment applies to cellular phones, it leaves out how the Fourth Amendment applies to email, it leaves open all these questions of high-tech surveillance that just don't happen to involve a trespass onto somebody's property.
TOTENBERG: David Kelley, who served as the top federal prosecutor in New York City during the Bush administration, said he was not surprised by the court's decision. He said most federal prosecutors had long assumed they needed a court authorized warrant to attach a GPS tracking device to a car. But beyond that, he said, there's nothing into today's opinion to prevent other high-tech surveillance techniques without a warrant.
DAVID KELLEY: Once you choose to operate and drive out in the public and knowing that, as we all do, that there's various surveillance equipment out there, you kind of waive any sort of expectation of privacy you might otherwise have had.
TOTENBERG: But Professor Kerr says the court has quite deliberately not resolved that question.
KERR: This is nine justices trying to figure out how does the Fourth Amendment apply in the new technological world, and the answers are really uncertain.
TOTENBERG: Indeed, while Justice Scalia, in his opinion, seemed to push for a narrow and clear line that would limit privacy claims, Justice Alito said the Scalia opinion decides a 21st century case based on 18th century law. And Justice Sotomayor, while signing on to the Scalia opinion, suggested that the entire framework used in the past may well be ill-suited to the digital age. She said that because people now reveal a great deal of information about themselves in order to carry out mundane tasks, it may be time to reconsider past decisions that allow police to get information without a warrant from third parties like phone companies or banks or email providers.
Nina Totenberg, NPR News, Washington.