CHASING EVIL IN THE HIGH-TECH DIGITAL AGE

Chasing down criminals and terrorists has always been the high point of any great crime-fighting drama. Classics like Bullitt or The Fugitive have inspired countless generations of Americans to join the ranks of their local or federal lawmen. As technology has progressed, Hollywood has been on the cutting edge (and sometimes even further) of technology designed to keep America safe.

But the technology isn’t fantasy; it’s real. GPS (or Global Positioning System) tracking devices are available everywhere and are even embedded in everyday devices. Now the Supreme Court must decide the future of this very omnipresent and effective weapon in tracking criminal and terrorist behavior.

On Tuesday, November 8, 2011, the Supreme Court heard oral arguments in the case of United States v. Antoine Jones. In this case, agents from the Federal Bureau of Investigation attached a GPS tracking device to a suspected drug dealer’s car. The car’s position was then tracked every ten seconds for about a month. A lower court decided that the tracking, attached to the car while it was on private property, necessitated a search warrant with probable cause. Thus, a case that was probably just a routine narcotics operation has now blossomed into a Supreme Court case pitting privacy and constitutional rights advocates on one side and law enforcement on the other. Both present compelling arguments on if GPS tracking is a Fourth Amendment search and under what circumstances it should be allowed.

The government, specifically through the Department of Justice’s brief to the Supreme Court, argues that the information obtained through the tracking (the position of the car over the month watched) was not reasonably private for the purposes of the Fourth Amendment’s Search and Seizure clause. Deputy Solicitor Gen. Michael Dreeben argued that “[w]hat a person seeks to preserve as private in the enclave of his own home or in a private letter or inside of his vehicle when he is traveling is a subject of 4th Amendment protection. But what he reveals to the world, such as his movements in a car on a public roadway, is not.” In other words, the Department of Justice argues that the reasonableness of the expectation of privacy should be based on what information was obtained rather than the method it was obtained. The government also went on to support its argument with policy reasons.

“[I]f 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 of the United States.”

However, the court did not seem persuaded by the government’s argument. In what seemed a summation of a majority of the court’s sentiment, Justice Stephen G. Breyer expressed concern to the government 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 of the United States.” The fear of the Orwellian 1984 scenario, mentioned by several of the Justices and several groups who filed amicus briefs in support of the defendant, seemed to solidify the outcome. The Supreme Court seems ready to require the government to, at the minimum, obtain warrants to track a suspect with a GPS or other electronic devices. The ruling is expected sometime next year.

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