11/1/2011

By Reid Allison, J.D. Candidate

On November 8th, the Supreme Court will hear oral argument in United States v. Jones, 10-1259, a case of great interest to 1L Criminal Procedure students and the general public alike because it will determine whether or not law enforcement officers must obtain a search warrant in order to attach a GPS device to a suspect’s vehicle and track the suspect’s movement for an extended period. The case has been written about by many commentators(including the ACLR’s Kirk Goza and Brad Leneis), and the issue of GPS searches has been the focus of extensive academic debate, including numerous student notes.[1]

Given the extensive commentary by much more qualified and expert commentators, what follows does not advocate a particular legal basis for which the Court could rule one way or another. The various options are well and succinctly established in Professor Orin Kerr’s recent posts at SCOTUSBlog and The Volokh Conspiracy, which discuss whether using a GPS device to track a suspect constitutes a Fourth Amendment search and whether installing a GPS device on a car constitutes a Fourth Amendment search or seizure.[2] It is clear from the extensive commentary and the relatively novel and unsettled nature of the question that the Court has ample grounds on which to hold for either party.

Instead, this post will address how issues raised by amici curiae for both the petitioner and the respondent could and should affect the Court’s holding rather than its reasoning to reach that holding. While it is, and will remain, unclear to what extent the Court will take into consideration the content of amici in this case, a few of the points raised by the amici are worthy of the Court’s concerted attention.

First, the Council on American Islamic Relations filed an admirably succinct and thought-provoking amicus briefin support of the respondent. Rather than filing a slightly different take on the respondent’s merits brief or a brief based on an obscure aspect of the law or history that is arguably in play here, CAIR wrote a brief that speaks to the significant dangers of a purely pro-government decision. In particular, CAIR traces this country’s sordid history of invading the privacy rights[3] of minority groups and points out that in the decade since September 11th, 2001 Muslim Americans have been the minority group du jour to be exposed to substantial and widespread privacy intrusion. Furthermore, the brief argues that this historical period is even more dangerous to civil liberties than previous periods of minority surveillance because law enforcement has access to powerful technologies like GPS, which allows for the discovery of much more intimate details of a citizen’s life.   

Second, the amicus brief of the Owner-Operator Independent Drivers Association, Inc. affirms through expansion the concerns raised in CAIR’s amicus. Civil liberties within the Muslim community are imperiled by warrantless GPS searching, but the Owner-Operator brief establishes that Muslim Americans are not the only distinct minority class subject to such privacy infringements. Lacking the numbers and political strength necessary to challenge such tracking at the administrative or legislative level, the Owner-Operator Independent Drivers Association looks to the Supreme Court to protect them from such invasions of privacy.[4]

On the other side of the case, the Center of Administration of Criminal Law filed an amicus in support of the government. The Center’s amicus makes two closely related arguments worth examining. First, the brief maintains that in these trying economic times, warrantless GPS tracking is a cheap and efficient way for police departments to continue doing their job.[5] Secondly, the brief argues that warrantless GPS tracking is the only way for law enforcement to conduct all of the investigations they need to, and to curtail the practice would lead to less effective law enforcement and, thus, more crime.

Each of these arguments is perfectly justifiable within the context of the brief because it starts with the presumption that warrantless GPS tracking does not invade privacy. But when warrantless GPS tracking begins to look more and more look privacy invasion (e.g. the facts of Jones), these arguments begin to wither. First, it is a fact of local government, particularly in these economic times, that there are very limited resources, which ought to be allocated according to the priorities of constituents. Cutting corners to save funds at the expense of privacy is not the solution to hard times. Rather, the lack of funds should lead to more efficient allocation of police resources, an increase in the proportion of funding to law enforcement (in relation to other local government programs) to satisfy the local populace, and, lastly, if that increase does not suffice to assuage the fears of the populace, a tax-hike for revenue to be raised for the police department. To the second argument, the only response can be that even in the best of economic times there are not enough law enforcement agents or resources to investigate every crime, let alone every suspicion. There are countless tactics that would allow more thorough investigation of a greater number of cases; doing away with the warrant requirement altogether would seem to have this effect. However, through the Fourth Amendment, the Framers and all the succeeding generations have believed that certain police actions are off-limits no matter the negative consequences that law enforcement suffers due to their prohibition.

There is no doubt that law enforcement should have access to and the ability to use helpful emerging technologies in investigations, but where privacy interests are at stake to the extent they are with 24/7 GPS monitoring, a warrant should be required. Indeed, important purposes of the warrant requirement include preventing the type of discriminatory practices that often come from unbridled police discretion and channeling police resources to those best founded and most concerning suspicions.

Though purely outcome-based opinions are typically not the most respected of Supreme Court decisions, Jonespresents a case in which the Court must consider the ramifications of its ruling before making the final decision. As discussed above, unless the Court places strict constraints on the use of GPS devices to track American citizens without warrants, it seems very likely that warrantless tracking will become more prevalent than it already is, and its abuse will be amplified. Certain distinct groups of American citizens will be left vulnerable to extended privacy invasions based on their ethnic background, association to religious or other groups, or other such profiles.

Professor Kerr and others opine that even if the Court finds for the government in this case and upholds warrantless GPS tracking as allowable under the Fourth Amendment, Congress should pass a law outlawing GPS tracking without a warrant. This may seem a reassuring safety net for those concerned with the civil liberty ramifications of a pro-government ruling in Jones, but there is no guarantee whatsoever that this legislation would be signed into law.

Instead, the general public—those that make up congressional representatives’ constituencies—are even more prone to the type of arguments made in the amici that favor the petitioner. Given that the vast majority of Americans, and particularly those with political clout, would not be widely subject to warrantless GPS tracking, the incentive for them to support such legislation is minimal. The “Orwellian” end game that is a well-worn trope of supporters of the respondent’s position (and indeed is somewhat present in the American Civil Liberties Union’s amicusin support of the respondent) seems an entirely unrealistic projection of consequences. Assuming that law enforcement operates in good faith when it tracks citizens without warrants, there is no reason to believe that this type of constant monitoring will extend beyond the classes of people to which it is already applied. For law enforcement to extend GPS tracking to a dragnet level would be for law enforcement to knowingly submarine a practice that they claim to be vital to their success in preventing crime and terror.

Moreover, the average American’s small incentive to support this legislation could create at least some incentive to halt the legislation where they are swayed by fear-mongering surrounding crime and terrorism—particularly arguments that law enforcement is incapable of preventing either in the absence of warrantless GPS tracking. A cautionary tale, albeit an extreme one which is not perfectly analogous to this situation, can be gleaned from the ease with which the USA Patriot Act was passed. The government, with the approval of its constituents, determined in the wake of one of our greatest national tragedies that civil liberties must be sacrificed in order for law enforcement to effectively discover and prevent another such attack.  

Given the substantial privacy interests at stake in 24/7 GPS tracking, the significant risk of discriminatory abuse through tracking of minorities based on profiles, and the distinct possibility that no remedial legislation would follow a pro-government ruling, the Supreme Court should take into account the arguments of amici in this case and place meaningful and effective restrictions on 24/7 GPS tracking.