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. - --- MAP posted-by: Jay Bergstrom