George Orwell’s 1984 was very much on the minds of the Supreme Court on Tuesday, as the justices grappled with a question that pits the use of modern technology in law enforcement against individual privacy interests. At issue is a case testing whether police must obtain a warrant before putting a GPS tracking device on a car to monitor a suspect’s movements.
A joint FBI-local police task force secretly attached a tracking device to the car of suspected drug kingpin Antoine Jones. The GPS pinpointed the car’s location every 10 seconds, 24 hours a day, for nearly a month, and ultimately it led to Jones’ arrest and the seizure of 97 kilos of cocaine and $850,000 at a stash house — evidence used to convict him.
But the U.S. Court of Appeals for the District of Columbia set the conviction aside because police had failed to obtain a warrant before putting the device on the car. The government appealed to the Supreme Court, where the justices heard arguments on Tuesday.
From the get-go, the justices had their knives out for both Stephen Leckar, the lawyer for Jones, and the government’s lawyer, Deputy Solicitor General Michael Dreeben. The difference was that this was Dreeben’s 80th argument before the court, and he skillfully batted back the justices’ questions, while Leckar, who won in the Court of Appeals, had never argued in the Supreme Court before.
Dreeben, in his argument, urged the court to stick to the line it has drawn in the past — no warrant is needed for surveillance of activities conducted on public roads.
Chief Justice John Roberts, however, seemed skeptical about applying that rationale to new technologies, asking if the government could “put a GPS device on our cars and monitor us?”
Dreeben responded that under the government’s theory and the court’s precedents, “the justices of this court, when driving on the streets, have no greater expectation of privacy” against a GPS device attached to the car “than they would if the FBI followed them around the clock.”
Justice Stephen Breyer struck a more ominous tone, asserting that “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen in the United States,” a scenario that “sounds like 1984.” Discussion of Orwell’s dystopic novel arose five times during the argument.
Justice Sonia Sotomayor asked Dreeban to explain the difference between the warrantless use of GPS devices and the general search authority that outraged the Founding Fathers and inspired the Fourth Amendment ban on searches without court authorization. Dreeben maintained, however, that putting a GPS device on a car is not a search. And he seemed to suggest that people have different expectations of privacy in an era of technological advances.
That is “too much for me,” interjected Justice Elena Kagan, suggesting that people would think their privacy interests are violated by having a robotic device monitoring their movements 24 hours a day.
Seeking to frame the issue differently, Justice Samuel Alito said that the “heart of the problem” is that until the Internet and computer age, it was very difficult to gather private information about an individual. “But with computers, it’s now so simple to amass an enormous amount of information about people. … So how do we deal with this?”
But Chief Justice Roberts focused more narrowly on the government’s position that no warrant is required. “Your argument is, it doesn’t depend how much suspicion you have, it doesn’t depend on how urgent it is. Your argument is you can do it, period. It doesn’t have to be limited in any way, right?” Replied Dreeben, “That is correct.”
So just how difficult is it to get a warrant? Justice Ruth Bader Ginsburg put that question to the government’s lawyer. Dreeben conceded it would not have been difficult in this case, but, he noted, a warrant requires a showing that there is probable cause to believe a crime has occurred, and he said police most often use GPS devices at the early stages of an investigation, before there is evidence of a crime.
Sotomayor asked how many GPS devices are used this way. Dreeben said he didn’t know about local and state use, but the number used by federal law enforcement was “in the low thousands” each year.
Following Dreeben to the lectern, attorney Leckar contended that because the GPS was placed on Jones’ car, it was a trespass on his property and amounted to an unconstitutional seizure, a commandeering of his car to provide data. The justices, however, were looking for how to address a broader question.
Justice Anthony Kennedy asked what the difference is between putting a GPS device on a car and placing 30 deputies along a route to conduct surveillance. “It seems to me what you’re saying is that the police have to use the most inefficient methods,” Kennedy opined. Leckar responded that the GPS poses a “grave” threat to privacy because Jones had control of his car and had a reasonable expectation that it would not be used to monitor him.
Ginsburg wondered how a system of surveillance cameras on public streets is any different. Leckar responded that there is no physical invasion with cameras on the street.
Kagan followed up, noting that in London, there are so many cameras that the police supposedly can put together snapshots of where everybody is all the times.
Leckar replied: “It’s pretty scary. I wouldn’t want to live in London under those circumstances.”
At that, Justice Antonin Scalia pounced: “Well, it must be unconstitutional if it’s scary.”