
Supreme Court rules 9-0 that warrant absolutely needed for police GPS tracking - ck2
http://www.wired.com/threatlevel/2012/01/scotus-gps-ruling/
======
DanielBMarkham
This is a victory -- if you can call a victory taking something back to where
it was all along.

Along those lines, I noted this in the article:

 _In a footnote, Scalia added that, “Whatever new methods of investigation may
be devised, our tsk, at a minimum, is to decide whether the action in question
would have constituted a ‘search’ within the original meaning of the Fourth
Amendment. Where, as here, the government obtains information by physically
intruding on a constitutionally protected area, such a search has undoubtedly
occurred.”_

If that broader interpretation would hold, that would be awesome news. But by
putting it in a footnote, as I understand it, it's more of a dream than
anything else. Great philosophy, though. Here's hoping it plays out that way.

The problem -- and the reason it won't, probably -- is that this kind of
interpretation needs to be put into a constitutional amendment. If you rely on
judicial interpretation, between the legislature and the courts, they'll make
a muddled mess out of it.

~~~
ajkessler
Some of our most important caselaw is contained in footnotes.

~~~
iandanforth
If you could supply a few examples I would love to learn!

~~~
ajkessler
One of the most famous is US v. Carolene
([http://en.wikipedia.org/wiki/United_States_v._Carolene_Produ...](http://en.wikipedia.org/wiki/United_States_v._Carolene_Products_Co.)),
but there are hundreds, maybe thousands of examples. Even when they don't
contain actual law, footnotes often give insights into why a court decided an
issue or interpreted a fact the way it did. These little hints can be
invaluable in distinguishing later cases, or giving a later court a foothold
to create some new law.

~~~
IgorPartola
Minor correction: courts do not create laws. They merely interpret them,
setting a precedent.

~~~
cwp
Setting a precedent is, in fact, the creation of new law. This is the basis of
the Common Law system that the United States and other former English colonies
use. See, for example, <http://en.wikipedia.org/wiki/Common_law>

~~~
IgorPartola
:). Thanks for the link, it was very educational. However, it actually doesn't
seem to apply in this case: "United States federal courts only act as
interpreters of statutes and the constitution by elaborating and precisely
defining the broad language (connotation 1(b) above), but, unlike state
courts, do not act as an independent source of common law (connotation 1(a)
above)." [1]

[http://en.wikipedia.org/wiki/Common_law#United_States_federa...](http://en.wikipedia.org/wiki/Common_law#United_States_federal_system_.281789_and_1938.29)

~~~
ajkessler
In theory, you're right: courts don't make laws. In practice, courts make law
every day. This is intuitively obvious (e.g. If law says you can't do A or C
but says nothing about B, and the court says "B is really just like A and C,
so B is also prohibited under the law", the court has just made law)[edit:
perhaps not so obvious if you don't practice law, but courts do this every
day], but also goes deeper: The very idea of judicial review itself was
invented by the courts (see
<http://en.wikipedia.org/wiki/Marbury_v._Madison>).

~~~
IgorPartola
Neat. I wonder what our society would have looked like today if Marshall lost
that one (had a bad day, spilled his coffee).

------
nextparadigms
In the meantime Lamar Smith is pushing a bill so ISP's track and log
everything you do online for 18 months, and then to give the data away without
a warrant.

[http://gcn.com/articles/2011/08/05/protecting-children-
bill-...](http://gcn.com/articles/2011/08/05/protecting-children-bill-could-
kill-internet.aspx)

~~~
ck2
Warrantless everything. It's the future of America.

Why they feel the need to do an end-run around judicial overview I have no
idea, because you rarely see a judge ever say "no" to law enforcement.

~~~
tdfx
Most people would be appalled if they saw what the police get away with when
they ask for search warrants. In the two areas I have personal experience
with, the process of getting a warrant is an administrative inconvenience to
the police, not the fair review that it's supposed to be. It's also important
to keep in mind that it's similar to a prosecutor getting an indictment --
it's the law enforcement side telling only their side of the story, twisting
facts however they please with no rebuttal, being told to a judge that
maintains regular working relationships with these people and whose main
concern is making sure the affidavit covers their ass enough not to get
overturned on an appeal.

~~~
bambax
In France in the 60s the police used to have fill-in-the-blanks search
warrants: pre-signed and pre-approved, with the name of the searchee
conveniently left blank, so officers could type in whatever they wanted
whenever they needed.

I say "in France" and "in the 60s" because it's been proven to happen there
and then, but it's probably still common in many parts of the world...

------
padobson
What sort of twisty-turvy world have we found ourselves in?

A right-leaning Supreme court upholds tennants of the 4th Amendment - the go-
to civil liberties ammendment - at the same time a Democratic administration
seeks to weaken said ammendment.

When Democrats are attacking our civil liberties and Republicans (looking at
you, Lamar Smith) are removing our economic freedoms, it's time to take the
crackpots seriously when they say we're not living in a republic anymore.

~~~
freehunter
What sort of twisty-turvy world have we found ourselves in?

One where the majority of people refuse to see politicians as politicians.
There is no Democrat vs Republican.

~~~
bestes
I'm not sure what you mean exactly; could you please expand a bit?

~~~
freehunter
Democrat and Republican are labels given without definition. You can call
yourself a Republican but be pro-choice, anti-gun, and tax-and-spend.
Political parties are fluid based on which politician participates at any
given moment. Actual beliefs are too nuanced to be boiled down to
"liberal/conservative" or "democrat/republican". Even trying to do so is
making a mockery of democracy, to paraphrase George Washington. A big issue
with politics is people pay more attention to the definition-less label and
less attention to what the politician actually stands for (if anything).

------
thucydides
The headline for this link is incorrect: the Court did NOT rule that a warrant
is necessary for police tracking.

So what was the government trying to do? They really wanted the Supreme Court
to rule that installing this GPS receiver was not even a SEARCH within the
meaning of the 4th Amendment. The Court said no, this is a search. In the
future, they will subject similar GPS installations to 4th Amendment scrutiny.

But on the warrant issue, Scalia explicitly wrote the Court will not answer
the question of whether the government needed a warrant on page 12 of the
opinion. Why? "The Government did not raise [this argument] below, and the D.
C. Circuit therefore did not address it... We consider the argument
forfeited."

------
suprgeek
The funny thing in this case which the Govt LOST in a big way is that the Govt
actually HAD a warrant. They failed to comply with it (Attaching the GPS after
the date granted by the court and for longer than granted.)

Basically the Govt. tried to convince the court that their bungling did not
matter because a "warrant" not needed to begin with as it was not a "search"
as defined in the 4th amendment. The Supremes slapped the hell out of that
argument and thus created a major ruling that now impacts all govt. actions on
GPS. The irony is awesome.

------
pwf
Does this ruling cover tracking via cell phone as well? According to the
Wikipedia article on mobile phone tracking, "The U.S. Justice Department has
argued that current laws allow them to track suspects without having probable
cause to suspect a law is being violated."

This case only seems to cover devices the suspect doesn't already willingly
carry.

~~~
_delirium
The ruling was made pretty narrowly, only covering devices that are physically
installed on an owner's property without their permission, so it wouldn't
apply to cell phone monitoring.

------
bri3d
Kozinski's dissent from a similar 9th circuit case (United States v. Juan
Pineda-Moreno) is an awesome bit of reading ("Some day, soon, we may wake up
and find we’re living in Oceania."):
[http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/08...](http://www.ca9.uscourts.gov/datastore/opinions/2010/08/12/08-30385.pdf)
. I'm also glad the supreme court ruled more sanely than the 9th circuit did
on this matter.

------
ck2
I'm curious what the next step is going to be, maybe try to use "onstar" gps
data without a warrant, because the way this is worded, it maybe seems the
action of placing the tracking device that is the violation, not using an
existing one, and they can still do it for "segments" (ie. tracking you for
just one leg of a journey and removing it afterwards is legal without a
warrant?)

Next we have to fight for our bodies not to be searched without a warrant as
Rand Paul is currently experiencing personally:
<http://news.ycombinator.com/item?id=3500715>

~~~
digikata
The linked article says Rand Paul set off an alert on a full body scan, then
refused to be searched. That sounds more like his "protest" is trying to cover
up something he didn't realize was carrying after the fact - otherwise why was
he not protesting the body scan in the first place.

~~~
burgerbrain
Rand Paul has on numerous occasions spoken out against the TSA's use of pat
downs...

~~~
digikata
I see no difference in principle between a search using someone's hands and
search using X-rays. If one objects to rights violation during a pat-down, why
doesn't the same objection apply to backscatter?

A backscatter machine in some ways is even more intrusive than a pat down as
it can generate higher resolution images, which can be saved. Furthermore,
there is a small, but non-zero risk of bodily harm from the scan -particularly
when you multiply the risk by the number of trips and passengers going through
the procedure, even a one in a million chance would cause harm far in excess
of the risk of terrorist threat that the search is trying to mitigate.

~~~
burgerbrain
_"I see no difference in principle between a search using someone's hands and
search using X-rays."_

Then you are hopelessly inhuman. The difference should be obvious, and likely
cannot be explained if it is not.

------
pflats
One of the things the article doesn't point out (but the linked case law does)
that I was curious enough about to look into:

The "beeper" was essentially a short-ranged RF transponder used as a tracking
device. The officers were actively following the suspect, and using it as an
aid to tailing the suspect's car. The suspect lost the tail, and the cops used
the beeper to find where he went.

This is contrasted with a GPS device, which was placed, tracked for a month,
and then retreived, and the data of the month's movements used to convict the
drug dealer.

------
blahedo
The decision 9-0 but with two separate opinions, and boy is the split weird:
Scalia-Roberts-Kennedy-Thomas-Sotomayor on the broader interpretation; and
Alito-Ginsburg-Breyer-Kagan on the narrower interpretation.

Good news on _either_ interpretation, though.

------
jessriedel
Anyone know how this is squared with US v. Knotts?
<http://en.wikipedia.org/wiki/United_States_v._Knotts>

>United States v. Knotts, 460 U.S. 276 was a 1983 United States Supreme Court
case regarding the use of electronic surveillance devices. The device in
question is described as a beeper and can only be tracked from a short
distance. The court unanimously held that the use of such devices did not
invade a legitimate expectation of privacy, and was therefore allowed, without
a warrant, under the Fourth Amendment.

Is it just a distance thing? Or length of time of the surveillance?

Here's the full opinion:

[http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us...](http://caselaw.lp.findlaw.com/scripts/getcase.pl?court=us&vol=460&invol=276)

~~~
_delirium
The majority (Scalia, Roberts, Thomas, Kennedy, Sotomayor) distinguished
_Knotts_ on the basis that in that case there was no trespass onto an owner's
property to install the device: _"The beeper had been placed in the container
before it came into Knotts’ possession, with the consent of the then-owner.
Knotts did not challenge that installation, and we specifically declined to
consider its effect on the Fourth Amendment analysis."_

The four remaining justices (Alito, Breyer, Ginsburg, Kagan) would've made a
stronger holding, instituting a new general principle that pervasive, long-
term monitoring requires a warrant, regardless of the method: they summarized
_Knotts_ as "relatively short-term monitoring of a person’s movements on
public streets" as opposed to this case's "use of longer term GPS monitoring".
(The're a need to come up with some kind of dividing line, because short-term
tailing of people on public streets has long been considered something police
can do on mere suspicion, without a warrant.)

Sotomayor's concurrence indicated a potential willingness to join those latter
four in an appropriate case, but she didn't feel it was necessary to deciding
this case, since it was enough for this case to just hold that the physical
installation required a warrant.

~~~
jessriedel
Great, thanks very much for that.

It seems mind-boggling for me that the mere fact that the device was installed
by the then-owner would be enough to make this OK without a warrant. It seems
no different than leaving a sticky tracking device on a public street where
you know the suspect is going walk, so that he unknowingly picks it up on his
shoe and can be monitored...pretty much forever.

EDIT: Wait, on second thought, are you sure? The main opinion says

> The first case, Knotts, upheld against Fourth Amendment challenge the use of
> a “beeper” that had been placed in a container of chloroform, allowing law
> enforcement to monitor the location of the container. 460 U. S., at 278. We
> said that there had been no infringement of Knotts’ reasonable expectation
> of privacy since the information obtained—the location of the automobile
> carrying the container on public roads, and the location of the off-loaded
> container in open fields near Knotts’ cabin—had been voluntarily conveyed to
> the public.6 Id., at 281–282. But as we have discussed, the Katz reasonable-
> expectation-of-privacy test has been added to, not substituted for, the
> common-law trespassory test. The holding in Knotts addressed only the
> former, since the latter was not at issue. The beeper had been placed in the
> container before it came into Knotts’ possession, with the consent of the
> then-owner. 460 U. S., at 278. Knotts did not challenge that installation,
> and we specifically de- clined to consider its effect on the Fourth
> Amendment analysis. Id., at 279, n. Knotts would be relevant, perhaps, if
> the Government were making the argument that what would otherwise be an
> unconstitutional search is not such where it produces only public
> information. The Government does not make that argument, and we know of no
> case that would support it.

To me, that says that Knotts is distinguised because all the data that the
police used was available publicly, i.e. that Knotts did not have a reasonable
expectation of privacy (which, presumably, Jones did in the recent case).

~~~
_delirium
I read that part differently. They're asking if the Government is arguing
that, since the search produces only public information here, like in _Knotts_
, that would mean that it's automatically constitutional under _Knotts_ ; and
they conclude that no, that can't override the trespass involved in
installation.

------
raldi
If I were to ask an FBI agent why obtaining a warrant first would have been
onerous in this case (or similar ones), what would they say?

~~~
dedward
more importNtly, if the supreme court asks them, what will they say. in this
case peosecutors mad it clear they interpreted the law to meanthey could
legally gps tag anyone, including then supremejustice's car without a warrant
- one imagines this could not have helped their argument, though the supremes,
unlike lower courts, are there to be the wisest of the judiciary and keep
things on track, iltimately. glad they did.

police need tools to do their jobs, ive lived in lands with police forces that
aredysfunctional. they need limits too, it just may turn out that the supreme
court decision here changes a. lot of things indirectly, rebalancing things a
bit.

~~~
raldi
Right, but my question was more like: Clearly this was a major investigation.
The FBI was involved, they followed this guy around for a month, they used
expensive technology, they appealed all the way to the Supreme Court .. if
they're going through all that trouble, would it have been that much more work
to just get a warrant first? Is there a long waiting list for warrant
hearings? Would the warrant have been unlikely to have been granted? Or did
they just screw up?

~~~
arh68
They just screwed up. They installed the device a day late and outside of DC.

From the last footnote in Alito's opinion, _In this case, the agents obtained
a warrant, but they did not comply with two of the warrant’s restrictions:
They did not install the GPS device within the 10-day period required by the
terms of the warrant and by Fed. Rule Crim. Proc. 41(e)(2)(B)(i), and they did
not install the GPS device within the District of Columbia..._

------
pash
More interesting than the decision—in which Scalia so narrows the scope of the
case (to whether attaching a device to a car constitutes a search) that it's
pretty boring—are last November's oral arguments.[1a, 1b]

In the oral arguments, there's considerable discussion about whether pervasive
GPS or other technologically enabled surveillance in itself is
constitutionally permitted. The discussion on this point makes for interesting
listening/reading because everyone agrees that the police are permitted
persistently to monitor someone over any indefinitely long period (in public,
where there is no search) without a warrant. Would equivalent surveillance
carried out not by human police officers but rather by technology be allowed?
Even though the relevant technologies will soon be so cheap that the
authorities would be able to monitor anyone (or everyone) in the country?

Another interesting point brought up in the oral arguments is that the
government owns your license plate, so placing a monitoring device on that,
rather than the car itself, would not constitute a trespass and so may not
constitute a search. Nothing in this decision refutes that logic, so the
police may still be able to track you by GPS without a warrant so long as they
put the transmitter on your license plate.

1a. Transcript: Oral Argument - Supreme Court [PDF]

1b. Audio: <http://www.c-spanvideo.org/program/302576-1> [Flash]

------
kmfrk
I like the way @alex_gaynor put it:

    
    
        When the Supreme Court rules 9-0 against you,
        there's a good chance your argument was fucking stupid.
    

<https://twitter.com/#!/alex_gaynor/status/161481523160297472>

------
kiloaper
Doesn't matter. As always the government is 2 steps ahead. Drones are already
being deployed in the US:
[http://usnews.msnbc.msn.com/_news/2011/12/15/9476623-domesti...](http://usnews.msnbc.msn.com/_news/2011/12/15/9476623-domestic-
drones-coming-soon-over-a-home-near-you)

~~~
dedward
I believe that is unavoidable givenhow things work. Getting something in front
of thesupreme court is more difficult than law enforcement moving forward....
so there will akways be a lag between the two.

~~~
kiloaper
I understand what you mean however the problem is more fundamental than that.
It has become the case in the US and abroad that the higher courts are just
enforcing existing laws in face of clear violations. With the blank card that
is terrorism, domestic or foreign, branches of the government simply do
whatever they want until they are called out on the illegality of it.

------
benwerd
Great judgment. But if I was an overly cynical person, here's where I could
see this going:

Data gathered by voluntarily-placed GPS units aren't covered by the ruling. If
they want the data, the onus is then on cities to create incentives to place
GPS units voluntarily.

Initiatives are started to link road tax to miles driven in any given county -
which requires GPS to check.

Cars suddenly begin to have built-in GPS transmission not just for OnStar, but
for other applications, like Facebook.

The car becomes a platform, and suddenly laws are enacted that effectively
require private citizens to report data to law enforcement.

Law enforcement gets to track _all_ drivers without a warrant.

(Not that I'm arguing for a different ruling - this is great - but I don't
trust the government not to take surveillance to its maximum possible level
given current technology.)

------
SoftwareMaven
"""The government told the justices during oral arguments that that GPS
devices have become a common tool in crime fighting, saying it is employed
“thousands” of times annually."""

So sad to think all those investigations will now have to have proper court
oversight (not that I imagine that is too hard to get).

Anybody know how this could effect other, already completed, cases? Could I
ask for a retrial/appeal if my conviction was heavily based on this type of
evidence?

------
joshuahedlund
_The government told the justices during oral arguments that that GPS devices
have become a common tool in crime fighting, saying it is employed “thousands”
of times annually._

Wow. So I guess that number is supposed to shrink to zero now? That transition
could prove to be very interesting...

~~~
andylei
all they need to do is get a warrant. they actually had a 10 day warrant in
the case in question. they just tracked the guy for 11 days and wanted to use
the evidence.

~~~
andrewem
Based on reading (the beginning of) the decision, that appears to be
incorrect.

From the first paragraph of the decision: "The warrant authorized installation
in the District of Columbia and within 10 days, but agents installed the
device on the 11th day and in Maryland. The Government then tracked the
vehicle’s movements for 28 days."

And from the footnote on page 2: "1 In this litigation, the Government has
conceded noncompliance with the warrant and has argued only that a warrant was
not required"

So they got a warrant but messed up and failed to comply with its terms, and
to try to preserve the conviction they argued that they didn't have to comply
with the warrant.

Edit: Rereading it, andylei's main point is that police just need to get
warrants and in order to still be able to use GPS tracking, and that's
correct. Apologies for the nitpicking.

------
electic
This is a victory, sure. But sadly, getting a warrant is a five minute affair
nowadays. Judges sign those like water. In fact there are judges that just
sign warrants exclusively. That's all they do.

~~~
rayiner
It's an important procedural protection. Just having a coordinate branch of
the government somewhere in the process gives you a safeguard against
egregious abuse.

------
tosseraccount
Does this mean that Facebook, Google and Apple need a warrant to track people?
Or just the police?

~~~
mrgoldenbrown
Google, Facebook and Apple don't need a warrant because you voluntarily sign
up to give them all your information. If you emailed the police every time you
drove somewhere, I don't think they would need a warrant to read those emails.

------
unreal37
The irony is that the govt HAD a search warrant in this case, they were 1 day
late in installing the device - the search warrant expired after 10 days, and
they installed it on the 11th day.

What's somewhat sad is that a drug dealer, who was caught with 97 kilos of
cocaine, 1 kilo of cocaine base, and $800,000 cash, gets to go free. But small
price to pay to retain the freedom of 300 million people I guess.

~~~
drzaiusapelord
> But small price to pay to retain the freedom of 300 million people I guess.

It was merely a coke dealer. We're not talking a serial child rapist or mass
murderer. My neighborhood is full of these guys and its unpleasant, but its
just drugs. I think a dealer going free is a very, very, very small cost to
pay. So small its not even worth worrying about. You could jail him today and
10 others would take his place. Drugs are funny that way. Demand doesn't
really go down past a certain point.

Meanwhile people who cover up child rape are deified because the organization
they are part of (large sports organization, organizaed religion) is too
sacrosanct to challenge.

