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Is a phone a tracking device?

EDITORIAL | SUPREME COURT GPS RULING | editorial

THIS STORY APPEARED IN

January 28, 2012

THE SUPREME Court ruled unanimously this week that officers who placed, without a warrant, a GPS device on a suspect’s car violated the Fourth Amendment’s prohibition against “unreasonable searches and seizures.’’ It was an important vindication of privacy rights in the digital age. But the reasoning of a five-vote majority of justices didn’t go far enough - and left a lot of ambiguity in an area of law begging for more clarity.

Antoine Jones, the subject of the case, was a suspected drug dealer who was being monitored by D.C. police for months under a valid warrant. That warrant had expired when they placed the GPS device on his wife’s Jeep Grand Cherokee. So when he appealed a subsequent conviction on conspiracy to sell cocaine, the government was left to argue that no warrant was ever necessary - that the placement of a tracking device on a suspect’s car is not unreasonable. The court slammed that argument, holding that placing the GPS on the car was an invasion of property, just as entering a house would be.

But in ruling that the act of putting a device on the car was grounds enough to void the conviction, the court majority, led by Justice Antonin Scalia, punted on an important broader question: How much privacy can a citizen expect when technology in smartphones and computers allows for surveillance without any physical intrusion? The GPS case is already a few technologies behind. Recognizing that, four other justices, led by the staunchly conservative Samuel Alito, wanted to guarantee a “reasonable expectation of privacy’’ regardless of whether a physical device is actually installed on a suspect’s property.

Notably, Alito went so far as to mock his usual voting partner, Scalia, who regularly decides cases by invoking what the Founding Framers would have done. “It is almost impossible to think of late-18th-century situations that are analogous to what took place in this case,’’ Alito wrote, claiming the best analogy might be a colonial constable who “secreted himself somewhere in a coach and remained there for a period of time.’’

Alito is right, and it’s encouraging that the justices are confronting new issues that don’t fall easily along the old left-right divide. Unfortunately, Americans will have to wait for more clarity on just how much privacy they enjoy from digital surveillance.