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Supreme Court rules 9-0 that warrant absolutely needed for police GPS tracking (wired.com)
410 points by ck2 on Jan 23, 2012 | hide | past | web | favorite | 115 comments

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.

It's a victory, yes, but probably not huge. The majority opinion, written by Scalia, takes the narrowest of views: that placing a GPS device is a "search", and as such, subject to the limitations set out by the 4th Amendment.

In a (concurring) opinion, Justice Sotomayor agrees with that narrow view, but she asks what will happen when the Government doesn't need to place an actual physical device in one's car in order to record where it's going?

And indeed we're probably already there, so this decision is in fact more about the past than about the future.

In my own opinion (IANAL), the "tracking is a "search"" view does not imply that there needs to be a physical device. So tracking a vehicle (using technology) in any other way is also a "search".

I'd agree. Tracking through any physical method (IE through an OnStar device or built in cellular with GPS) would have to go through the vehicle manufacturer or service provider, which (if the companies behave how they should) should require a warrant simply to receive the data in the first place.

The greatest concern would be when surveillance satellites could be used to track cars inside a city. Or using CCTV traffic cameras for a live-tracking of tagged license plates. The question is would this tracking actually constitute a search. Because a warrant doesn't have to be issued for an undercover cop to follow a car, only probable cause. So does 'probable cause' extend to digital tracking through a CCTV grid, satellite or combination? That's where it gets creepy to me, because IMO this likely won't constitute a search.

Such as accessing the phone carrier's records on where a cell phone has been via its internal GPS?

The Supreme Court decision actually mentions that the government may "ask" car makers to just give them access to the car's own GPS device. Scary that the Supreme Court even suspects this will happen.

I don't get why the police didn't do this to begin with and then they could have simply blamed the auto manufacturer for not requesting a warrant.

I think all you need is a netwrok of surveillance cameras, which is already in place, to varying extents depending on where you live.

Then it's a software challenge to automatically read the licence plates in view and keep track of them in a database.

Or perhaps following the car with a drone.

You're over thinking it. Red light cameras can already read the license plate of every car that goes through an intersection. The roving fleet of meter maids in DC drive cars that read the plates of every car they pass.

Until we have drones smart enough to focus on a specific car (vs. a mostly identical model right next to it), the drones will still require human operators, which makes the process not far removed from an old-fashioned tail (similar to the mentioned beeper case).

Targets can be laser painted/marked by a drone or more usually a secondary source and followed by a drone on the specific signature. This is currently actively being done in several combat theatres.

It is highly likely to be already happening in the US, particularly along the borders and in federal investigations.

a 9-0 vote by the supreme on this matter is a huge thing.... much more than simply a majority vote. it sends a loud and clear message about their stance on the matter. judges and prosecutors will take this, and all the details into consideration moving forward..... i would imagine the judiciary does not like to pass judgement that will beoverturned by thesupreme court as a matter of professional pride in many cases, and prosecutors dontmlike taking on losingcases.

take the win for what its worth, it is huge. ( i had to double check i wasnt linking to the onion when i woke up and saw theheadline.... good job neighbours ! beproud that your supreme mcourt just did what it is supposed to do, andthey did it loud and clear.

a 9-0 vote by the supreme on this matter is a huge thing.... much more than simply a majority vote. it sends a loud and clear message about their stance on the matter.

Tell that to lower/circuit courts who have an annoying habit of giving SCOTUS rulings a big fat middle finger.

I can think of one recent example: District of Columbia v. Heller & McDonald v. Chicago. Lower courts have been generally unwilling to embrace 2nd amendment rights in light of those two decisions.

Thanks.... some very interesting reading (sorry if this post is breaking hn ettiquette)

Lower courts have been generally unwilling to embrace 2nd amendment rights in light of those two decisions.

[citation needed] And, yes, I am a lawyer, and I am interested in what actual cases you had in mind as you made the statement in your comment.

He gave you one in his post: http://en.wikipedia.org/wiki/McDonald_v._Chicago

which points to related cases. Hope this helps!

He was asking for examples where lower courts ignored McDonald v. Chicago.

In Ezell v. Chicago, decided July 6, 2011, the Seventh Circuit reversed a district court decision that the post-McDonald measures adopted by the City of Chicago were constitutional.

It's in the wiki entry. Under related cases. As I previously stated.

That's a pretty broad statement. Got any examples?

attorneys on both sides, plus juries hearing this will do wonders..... judges dont rule alone necessarily (you have the right to trial by your peers, corect?)

Appeals courts will follow the supreme court if a similar cae hits the judges desk - they are not goung to throw the same case at the supreme cort, bad mojo, it would just be rejected saying "we Alredy ruled on that".

also.. while i am pretty sure the supremes are in office for life ( or until they step down voluntarily orprobably a few other things like commit a felony or become incapacitated, etc) - are other judges as secure? The supremes take their duties very seriously it seems to me. they dont rule lightly, and they are not stupid.

while i am pretty sure the supremes are in office for life . . . are other judges as secure?

All judges in federal courts in the United States may stay in office essentially for life. The language in the Constitution is "The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behaviour,"


(Article III, Section 1)

and "during good behavior" means that unless the judges are formally impeached and convicted of malfeasance (which is very rare) they can stay in office until they decide to resign. This independence of the federal judiciary is considered very important by United States lawyers (whether they are "conservative" or "liberal") for maintaining the civil liberties of Americans. Today's decision is a good example of a decision that was made unanimously contrary to the position taken during litigation of the case by the current presidential administration.

"you have the right to trial by your peers, corect?"

I believe the answer to that is "not exactly, it's complicated."

A statement like that which is not part of the official decision are referred to as "dictum". Lower courts review higher court rulings, including dicta, and over time dicta has a way of becoming law.

Scalia is a kind of a Fourth Amendment hardliner when it comes to _the home_, so I'm actually surprised at this result. Fourth Amendment rights in so far as automobiles go have been eroding for years. Note that the concurring opinion wanted to reframe the issue such that there _was_ a reasonable expectation of privacy when it comes to automobiles (which would be a more expansive reading of Fourth Amendment rights).

The supreme court can only rule on issues brought before it, rather then make broad corrections to law. One of the reasons the ACLU case against the Fed over wiretapping was rejected early. (Who are the people being hurt by it, is one of the requirements) http://www.aclu.org/national-security/federal-appeals-court-...

It's one of the checks placed on their authority.

Some of our most important caselaw is contained in footnotes.

It seems that footnotes would often be "dicta" - judicial comments not directly relating to the case at issue, and therefore not form binding precedent.

May be influential, but not binding.


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

One of the most famous is US v. Carolene (http://en.wikipedia.org/wiki/United_States_v._Carolene_Produ...), 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.

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

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

:). 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]


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).

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

While not a footnote, the headnote of Santa Clara County v. Southern Pacific Railroad "indicated that corporations enjoyed the same rights under the Fourteenth Amendment, adopted in 1868, as did natural persons" and has been very influential.

The actual holding in Taylor v. Taintor (http://en.wikipedia.org/wiki/Taylor_v._Taintor) is not nearly as famous as the paragraph in the majority opinion that gives legal standing to bounty hunters: "Whenever they choose to do so, they may seize him and deliver him up in their discharge; and if that cannot be done at once, they may imprison him until it can be done. They may exercise their rights in person or by agent. They may pursue him into another State; may arrest him on the Sabbath; and if necessary, may break and enter his house for that purpose"

  if you can call a victory taking something back 
  to where it was all along
Yes, I would say you can. Democracy requires constant vigilance by the public (in contrast with the despotism where only the despots and their political machinery need to be vigilant).

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.


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.

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.

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...

My personal experience reflects this as well. Secret service obtained a search warrant looking for evidence of credit card fraud for my apartment based on some old consumer electronics packaging in our trash and recycling bins, bins shared with 2 other apartments nonetheless.

I think you know the answer: if judges will approve it 95%, law enforcement becomes convinced that the process of obtaining approval is superfluous, and is nothing but a barrier to getting their job done. The problem is, that is a violation of the persons rights. S ome publications report that anywhere from 5-10% of WARRANTED searches were invalid. So imagine if you dropped that prerequisite, what that number would end up being? Would LEO selectiveness drop, and put the level of effort in validating the search onto the defense? Is that fair to the defendant? Absolutely not.

law enforcement becomes convinced that the process of obtaining approval is superfluous, and is nothing but a barrier to getting their job done

I don't have a problem with giving law enforcement more work to do if it means increased diligence in the court room and due process actually being executed...duly.

after this ruling we will see, right ? Imagine a supreme court judge aski ng if All of his internetndata was available to besearchedwithout a warrant And being told yes.... one could imagine a similar outcome when such a case reaches them.

That article is massively wrong, as you would see if you spent (literally) two minutes looking at the bill.

Here's an earlier description of what the bill ACTUALLY does: http://news.ycombinator.com/item?id=3497599

To me, this supreme court decision stands as precedent against the ISP's forced tracking. If recording your vehicle moves constitutes a search, then recording your online moves surely constitutes a search.

The only difference is that the supreme court ruling mentions officers having to enter a constitutionally protected area(your car) to install the searching device. With ISP data recording they would have to make no such intrusion, as it would be built in. It would be as though every car came with GPS monitoring and all the feds had to to was ask for it from your car's manufacturer.

It would surprise me if the police hadn't gone to OnStar to get exactly that kind of tracking information. Even if they haven't, just reframing the case the way you have reduces the applicability of the ruling significantly. It wouldn't be hard to argue "the Internet is a public place" and as such, there is no expectation of privacy (perhaps with the exception of SSL, but AFAIK, PCIPA doesn't require keeping the actual data, just the logs of where you went, which, even with SSL, the IP address you are visiting is clear text).

I think we will need new legislation or some serious divine intervention for this decision to protect our online privacy from the government.

Where did the notion arise that because USA is a representative democracy, that they are somehow not subject to bureaucrats relentlessly trying to increase and concentrate their powers over their constituents?

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.

I respect the sentiment, but let's be fair here: this was a unanimous decision. There was no dissent. If one of the conservative-leaning justices were replaced with a liberal-leaning justice, it would have gone the same, with "A left-leaning Supreme court".

Sure, there's a lot to complain about, but this case shows that there are positive things both sides agree on.

While the current court might be right-leaning, it's issued a series of strong civil liberties decisions in the last few years that fit into their "original intent of the framers" model. This case (4th), the video game case (1st), and even Citizen United (1st). They can all be understood in terms of the inquiry: would the Framers have considered this unconstitutional?

>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.

This isn't topsy-turvy; it's exactly what we should expect when we consider the two sides as "Judicial branch" vs. "Executive branch" rather than 'right' vs. 'left'. One should expect professional Defenders of the Constitution, however they used to vote in national elections, to care deeply about 4th amendment protections.

The desire of the executive branch to maintain and increase the power of the executive branch is cross-party. That's part of the whole theory of separation-of-powers; the judiciary and the legislature act as a check on executive power.

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

The same one we've lived in since Marbury v Madison. Judaical review and all that jazz.

The legislature and executive are always trying to grant themselves more power, regardless of party.

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.

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

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).

As a non-politician with no connection to politics other than as a voter, I have consistently encountered material differences in my rights and standard of living depending on which party was in power.

Your "politicians are all the same" meme might be popular with people who are too lazy to learn about the world, but it rings hollow to anyone not living in willful ignorance.

I'm not saying politicians are all the same. I'm saying politicians are not Democrat or Republican. There is no "democrat", there is no "republican", there is a matrix of beliefs combined with a scale of how deeply held those beliefs are. You cannot say "life is better when a Democrat is in charge" because there is no definition of a Democrat. They run the spectrum, like all other politicians.

This is like saying you prefer presidents with brown hair. There are good people with brown hair, and there are bad people with brown hair.

I have Asperger's Syndrome. This rests on something hazily known as the autism spectrum. It sits alongside other disorders such as Autism and Rett syndrome. There are millions of people with such disorders. Although we all have what you might describe as "autistic characteristics", our actual problems are different, and fall into various categories that have been established to aid understanding, coping, and treatment.

Your argument that there are no Democrats or Republicans amounts to an argument that there is no Asperger's syndrome, or Rett syndrome, it's all just Autism. Anyone actually on this spectrum, or that spends even the slightest bit of time studying it, would tell you you're either ignorant or insane.

Electromagnetic energy is also on a spectrum. In some places we call it "visible light". In some places it's infrared, ultraviolet, radio, or microwave. Are they all energy? Yes, but that's irrelevant.

Democrat, Republican, Libertarian, Green, they are all a grouping of policies and beliefs that are assigned labels. There is no more "no democrat" or "no republican" than there is "no visible light".

Yet you still get "democrats" who lower taxes, start wars, and restrict liberty. Yet you still get "republicans" who raise taxes, increase the size of government, and create social programs. If you have blue visible light and mix it with red visible light, is it still called "red" or "blue"? Or is there a different name for it? Because it sure as hell isn't still blue.

If you mix a little red in with a little blue, you start shifting it out of "blue", but it's not abruptly "not blue".

No significant political party or other large group in history has ever demanded perfect adherence by all members to all aspects of platform or ideology, that doesn't mean the groups didn't exist.

I'm also not sure where you get the idea that lowering taxes is not a Democratic thing, or creating social programs is not a Republican thing. It sounds like you're getting your ideas of what the parties stand for solely from the loud-mouthed extremists.

The world is nuanced, that doesn't mean identifiable groups do not exist.

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."

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.

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.

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.

The ruling does not cover cell phone data or GPS devices that deliver data to a third party.

Cell phone records are not the papers or effects of the person being investigated, they belong to the cell phone company. The Supreme Court "consistently has held that a person has no legitimate expectation of privacy in information he voluntarily turns over to third parties."(442 US 735,743-744)[1] That quote is from the Court's ruling in a case that was specifically about police getting a record of telephone calls that a suspect made, Smith v. Maryland, 442 U.S. 735 (1979)[2].

Congress laid out rules for police obtaining such records in the Electronic Communications Privacy Act (ECPA) of 1986[3]. The ECPA doesn't specifically mention cell phone location information (since this was 1986), but it does include "name; address; local and long distance telephone connection records, or records of session times and durations; length of service (including start date) and types of service utilized; telephone or instrument number or other subscriber number or identity, including any temporarily assigned network address; and means and source of payment for such service (including any credit card or bank account number)."

A court order may be issued under section 2703(d) of the ECPA[4] "only if the governmental entity offers specific and articulable facts showing that there are reasonable grounds to believe that … the records or other information sought, are relevant and material to an ongoing criminal investigation."

This is a lower standard than for a search warrant. A warrant requires "probable cause", that is "information sufficient to warrant a prudent person's belief that … evidence of a crime or contraband would be found in a search".

[1] http://supreme.justia.com/us/442/735/case.html#743

[2] http://en.wikipedia.org/wiki/Smith_v._Maryland

[3] http://en.wikipedia.org/wiki/Electronic_Communications_Priva...

[4] http://www.gpo.gov/fdsys/pkg/USCODE-2010-title18/html/USCODE...

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... . I'm also glad the supreme court ruled more sanely than the 9th circuit did on this matter.

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

> maybe try to use "onstar" gps data

maybe, but probably not necessary. they'll just get warrants. its not really that hard to get a warrant. if they have basically any reason to suspect that you're doing something illegal, they can get a warrant.

remember that even in this case, the government had a 10 day warrant; they just tracked the guy for 11 days.

> 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"

not sure what language suggested that, but the facts of this specific case were that they tracked a guy for more time than the warrant allowed (not that they attached a device without a warrant). scotus ruled that this wasn't okay.

I think, unfortunately, it wouldn't be considered a search as the data recording would probably be considered voluntary.

There are certain expectations that the customer has about the parties involved and what the voluntarily collected data will be used for. It would be hard to make make a case that warrantless seizure of data fit into the customer's expectations.

Under existing law voluntary disclosure of the customer's data to law enforcement doesn't appear to be illegal, if the company wants to disclose it (as opposed to having its data centers raided, which does require a warrant). At worst it'd be a violation of the privacy policy, if the privacy policy is held to be legally enforceable.

For example, Facebook has been careful to never make an explicit statement to the effect of, "we never share data with law enforcement unless we receive a warrant or subpoena". My guess is that this is because they do share data without asking for a warrant.

That's just Scalia's footnote.

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.

Not necessarily. Last week, I opted out of backscatter, and the pat-down triggered an "explosives detected" alert. I was in a hurry, but otherwise would have wanted to be much more resistive of the private search I underwent after that.

Because it's absurd. Because I do not carry or interact with explosives.

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

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.

"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.

If I have a nude photograph of someone, does that mean I've already raped them?

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.

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.

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:


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.

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).

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.

It seems to me that since it can only be read from a short distance, you would be unable to track it in areas where police wouldn't be able to go without a warrant; it's closer to trailing a suspect than anything.

The article briefly touches this.

> One of the Obama administration’s main arguments in support of warrantless GPS tracking was the high court’s 1983 decision in United States v. Knotts, in which the justices said it was OK for the government to use beepers known as “bird dogs” to track a suspect’s vehicle without a warrant. In that case, the police had the consent of that truck’s owner, which was not the case in the opinion decided Monday, Scalia wrote.

So they had "the consent of that truck’s owner". I'd like to know what they specifically meant with this though.

Just a guess but I suspect it's both the distance and how it was placed in the vehicle. The police did not put it in themselves, they placed it in a container that was loaded into the vehicle by the seller/suspect.

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?

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.

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?

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...

They did obtain a warrant. They just didn't follow the rules - installing it too late and in a different state.

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]

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.

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...

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.

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.

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.)

"""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?

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...

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.

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.

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.

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.

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

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.

As a general point, the Bill of Rights isn't an enumeration of rights per se. You don't have the right not to be searched. The Bill of Rights are a limitation of the exercise of federal (and through the 14th amendment, state) power. So no, Facebook could send someone to install a GPS device on your car and it wouldn't violate your 4th amendment rights, since Facebook is not the government. It would, however, probably be a simple trespass for which they could be sued in state court.

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.

> 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.

It is not really that sad, I would let 100 victim-less criminals go free to force enforcement agencies to obtain warrants before tracking people.

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