Supreme Court rules on GPS tracking, but punts on larger issues......

OFF THE WIRE

By Bob Sullivan

Monday’s Supreme Court ruling invalidating a conviction based on evidence gained by GPS tracking of a suspect's car might seem like a victory for privacy advocates. But on the critical issues of privacy and Fourth Amendment rights, the majority of the court actually punted. 

The unanimous opinion issued Monday morning is among the first in which the Supreme Court has decided a case at the thorny 21st-Century intersection of law, technology and privacy.  Police in Washington, D.C., had tracked a suspect by placing a tiny GPS device on his car, then tracking his movements for about a month. While the trial court held that evidence obtained through the GPS amounted to surveillance of the suspect's movements through public spaces, an appeals court ruled that it constituted an illegal search and seizure and a violation of Fourth Amendment rights.  The Supreme Court affirmed the decision. 

There was a remarkable amount of disagreement, however, in this unanimous decision. The court issued perhaps the narrowest ruling possible -- essentially that placement of the GPS on the car constituted a violation of property and effects rights, akin to trespassing, therefore spoiling any evidence garnered through the process.  Left undecided: What rights do citizens have when law enforcement uses other technological methods to track their whereabouts?

Justice Sonia Sotomayor, while concurring with the decision, delivered a separate opinion dripping with disappointment.

"With increasing regularity, the government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance," she wrote.

Electronic law expert Mark Rasch, former head of the Justice Department's Computer Crime unit, said the opinion has "almost given carte blanche to law enforcement to go ahead and try to find their way around" the ruling, such as enlisting the help of cell phone providers to track citizens in their cars.

Sotomayer clearly regretted that the majority did not take the opportunity to make a more definitive ruling on privacy and Fourth Amendment rights, Rasch said. In her opinion she raised the complex issue of law enforcement agencies increasingly using private firms to aid in surveillance and evidence gathering. Rules governing evidence originally obtained by third parties are unclear, but generally offer fewer rights that rules governing law enforcement investigative techniques.

"This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Sotomayer wrote. "People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. … I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every website they had visited in the last week, or month, or year."

Justice Samuel Alito also seemed frustrated by the court's failure to take on the deeper issues raised in the GPS tracking case.

"(This opinion) largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor -- attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation,” he wrote in a concurring opinion.  "By contrast, if long-term monitoring can be accomplished without committing a technical trespass — suppose, for example, that the federal government required or persuaded auto manufacturers to include a GPS tracking device in every car — the court’s theory would provide no protection."

The Justice Department had asked for even more sweeping evidence-gathering rights. It argued that placement of the GPS device on the suspect's car was akin to other forms of electronic evidence-gathering that the court has already allowed. The most analogous situation, the Justice Department argued, was placing a homing beacon, or "beeper," in a device that is given to a suspect – for example, in the case cited by Justice, when illicit chemicals with a beeper attached were sold by a cooperating witness to a suspect.  But such beepers are placed into property with the permission of a third party and then accepted voluntarily by a suspect. That differs greatly from law enforcement attaching a gadget to a suspect's car, the court found. That makes the act less like surveillance and more akin to a search, affording it Fourth Amendment requirements.

"The government physically occupied private property for the purpose of obtaining information," Justice Antonin Scalia wrote. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

Scalia was comfortable stopping there.

"It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question," he wrote, in a direct answer to Sotomayer's complaint. "There is no reason for rushing forward to resolve them here."

Rasch found deep faults in Scalia's logic. Police "attach" things to citizens' automobiles all the time. Parking tickets, for example, or chalk marks as a reminder to meter maids that cars may have exceeded hourly requirements. The act of installing something on a car is not itself trespassing, he argued – it’s the act of using such a device to track a citizens' movement over time without a warrant that raises constitutional issues. 

"'Hands off my car,' is the best way I can put this ruling," he said, adding that he thought the court had failed by issuing such a narrow ruling.

"They've avoided the issue. They were asked to address the Fourth Amendment issues, and they decided a trespassing case," he said. "You don't need the Supreme Court for that." 

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