U.S. v. Jones, 10-1259 (2011) Transcript of Oral Arguments
On Tuesday, November 8th, the Supreme Court heard oral arguments in U.S. v. Jones to determine whether the police had violated Antoine Jones’ Fourth Amendment rights when they attached a GPS to his car without a warrant and tracked his movements. Though the police initially obtained a warrant for the investigation, it had expired when they placed the GPS on Jones’ car. Under the standard first developed in Katz. v. United States, Fourth Amendment protection extends to an individual’s “reasonable expectation of privacy.”
In applying this standard, the Court must determine whether and how warrantless GPS tracking differs from police tailing an individual by sight in public, which is not subject to Fourth Amendment protection. U.S. Deputy Solicitor General Michael Dreeben, on behalf of the government, argued that regardless of the method used, police tracking of individuals in public places is constitutional. Yet, despite questioning from several justices suggesting that use of a GPS might constitute a search under the Fourth Amendment, Jones’ attorney, Stephen Leckar, instead tried to propose a narrow rule that the installation of the GPS was itself a search or seizure requiring a warrant.
Commentaries by the Center for Democracy & Technology and Professor Orin Kerr for The Volokh Conspiracy highlight the justices’ discomfort with the idea that evolving technology might render current constitutional protections insufficient, a scenario they repeatedly compared to George Orwell’s 1984. At the same time, SCOTUSblog notes that both parties’ inability at oral argument to suggest clear rules for guiding law enforcement’s use of surveillance technology frustrated the justices, leaving the outcome uncertain. The Wall Street Journal suggests that even a decision by the Court requiring a warrant in order to use a GPS tracking device may not change the limits of police surveillance because law enforcement authorities in most states can instead request access to a customer’s cell phone records for tracking purposes without a warrant and without the customer’s knowledge.
As Deputy Solicitor General Dreeben began his argument, Justice Scalia was quick to reveal that he believed the current standard for identifying violations to the Fourth Amendment was not faithful to the constitutional text. Other justices exhibited strong concerns that the government’s position did not allow for reasonable expectations of privacy. Chief Justice Roberts emphasized that the main decision on which the government based its case, United States v. Knotts, was decided “30 years ago,” and advancements in technology have allowed the police to go from monitoring a beeper and following the suspect in a helicopter to being able to “sit back in the station and push a button whenever they want to find out where the [suspect] is.” Justice Alito alluded to an Orwellian outcome if the Court failed to draw a line between tracking by GPS and tailing an individual, while Justice Breyer suggested that a ruling for the government would leave “nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” Although the justices were concerned about preserving liberties, they repeatedly asked both sides for clear rules, leading Justice Sotomayor to call Jones’ attorney’s proposal for what constituted a reasonable expectation of privacy an “unworkable rule tethered to no principle.” In trying to find the contours of a rule, several Justices suggested that the policy-intensive nature of the analysis seemed to require definition by the legislature.
A decision is expected at the end of June next year and is very likely to have ramifications beyond Jones’ freedom. Depending on the outcome and the grounds on which the Court bases its decision, there may be new pressure on legislatures to bring clarity to the issue of the public’s expectation of privacy and the use of new technology to surveil.
Amara Osisioma is a 2L at Harvard Law School.