Pubdate: Thu, 26 Jan 2012
Source: New York Times (NY)
Copyright: 2012 The New York Times Company
Contact: http://www.nytimes.com/ref/membercenter/help/lettertoeditor.html
Website: http://www.nytimes.com/
Details: http://www.mapinc.org/media/298

GPS AND THE RIGHT TO PRIVACY

The Supreme Court ruled unanimously on Monday that the police 
violated the Constitution when they hid a Global Positioning System 
tracking device on the car of Antoine Jones and monitored his 
movements for 28 days. It put law enforcement on notice that most GPS 
electronic surveillance will be suspect without a judge's warrant.

As welcome as the ruling was, the court left too many questions 
unanswered. It did not say how long this kind of surveillance can go 
on before requiring a warrant or what types of crimes justify GPS 
monitoring. It did not say what the rule would be if the police had 
tracked Mr. Jones with a technology not hidden on his car.

The view of a five-justice majority is that the ancient legal concept 
of trespass is sufficient to prohibit the intrusion in this case. But 
a persuasive concurring opinion for four justices makes plain why 
that concept is unsuitable for addressing 21st-century technology. 
The result is a narrow holding: It upholds the overturning of Mr. 
Jones's conviction for distributing cocaine. But the police could 
argue that a warrant is unnecessary for short-term GPS surveillance 
or, more importantly, for monitoring that involves no physical 
intrusion and might well win.

Justice Antonin Scalia wrote the majority opinion that says that the 
police's action of putting the GPS device on Mr. Jones's car and 
using it to monitor the car's movements constitutes a search the same 
as entering his house without being invited and violates the Fourth 
Amendment's prohibition against unlawful searches and seizures as it 
is "tied to common-law trespass."

Justice Samuel Alito Jr. in the concurring opinion properly focuses 
instead on the "reasonable expectation of privacy" the court has used 
as its standard since 1967, explaining why GPS technology - which 
makes "long-term monitoring relatively easy and cheap" - requires 
thinking differently about what's reasonable.

His opinion explains convincingly why Justice Scalia's reliance on 
the idea of trespass fails the same way the Supreme Court's reasoning 
failed in early cases about wiretapping: The court found no 
violations when taps were made on wires near, not in, houses 
targeted. Similarly, if cars were to include GPS tracking devices as 
smartphones now do, the majority holding "would provide no 
protection" against using the devices for surveillance.

The full court recognized the intrusion on Mr. Jones's right to 
privacy. A majority of the justices also recognized the wider threat 
to citizens' privacy from this and other new technologies. 
Regrettably, their understanding is not reflected in the narrow holding.
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