UPDATE: The court ruled in Jones. Read about the decision here.
The Obama administration wants federal and state law enforcement to be able to put a tracking device on your car without a warrant. The heart of the case depends on the interpretation of a 1983 ruling, in which the Supreme Court granted that a "beeper" could be installed on a suspect's car without a warrant. Beepers are a technologically inferior version of GPS, which allowed the police to follow a car at a distance of a few blocks. The beeper's short range meant that the police had to actually physically follow the car they were tracking, even if they remained outside its line of sight.
In the Jones case, police and FBI affixed a GPS device to Mr. Jones' car. They then tracked his movements from a remote location for about a month before they arrested him. He was charged with drug trafficking and sentenced to life in prison, before an appeals court overturned his guilty verdict, agreeing with Mr. Jones' defense that the warrantless GPS tracking didn't pass Constitutional muster.
But in a case that will have huge implications for police use of a variety of tracking technologies, the Justice Department under President Obama wants to see that appeals court decision overruled. According to the Boston Globe, the DOJ argues that warrantless GPS tracking is "especially useful in early stages of an investigation, when they can eliminate the use of time-consuming stakeouts as officers seek to gather evidence."
That is a chilling, not reassuring statement these days, when the federal government doesn't need any evidence at all to suspect you've committed a crime before surveiling and investigating you. The government's line of reasoning seems to suggest that GPS enables them to spy on people without dedicating many resources. Is this necessary because so many people are being investigated? Had there been a warrant requirement for this technology, would agents have tucked a GPS device under the bumper of 20-year old student Yasir Afiffi last year?
The Jones decision will have a direct impact on most Americans, even those who are never targeted with a GPS device on their car. That's because most Americans carry cellphones, which double as GPS tracking devices. This ruling will likely apply to the warrant requirement for tracking people using their mobile phone location.
The Fourth Amendment protects people in this country from unwarranted searches and seizures. We should read that centuries old document today in the context of new and emerging technologies that enable the government to track our whereabouts. Should the government simply be allowed to stalk any person of its choosing, without a good reason agreed to by a judge?
The FBI's own numbers demonstrate that in the vast majority of cases, the fishing expedition investigations they pursue on people against whom they have no evidence lead to dead ends. As the New York Times revealed in August 2011, of over 80,000 so-called "assessments", or invesitgations without predicate, the FBI turned up evidence of wrongdoing justifying further investigation on under 4,000. Is that the best use of the FBI's time and precious resources?
This is the context in which the GPS case will be decided, with due process and presumption of innocence afterthoughts at the DOJ and FBI. If the Supreme Court gives the DOJ a pass to warrantlessly track and surveil people against whom there is no evidence of criminal activity, we all lose.
Judge Douglas H. Ginsburg, writing for the majority for the US Court of Appeals at the DC Circuit, described why warrantless GPS tracking is a threat to our democracy and must be stopped.
A person who knows all of another's travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.
Let us hope the Supreme Court agrees.