Privacy victory: High court requires warrant for GPS tracking

Conventional wisdom holds that a court with four reliably conservative members and one swing justice tends to back the "law and order" arguments of police while being decidedly less sympathetic to the interests of criminal suspects. President Barack Obama, meanwhile, won election in 2008 after promising to end what he characterized as executive branch abuses by his predecessor, George W. Bush, and to protect the constitutional rights of terrorism suspects — even those captured overseas as enemy combatants.

Yet, in the case of United States v. Jones, the Obama administration took the tough-on-crime approach, urging justices to allow GPS tracking without warrants. And, thankfully, the supposedly pro-cop conservative justices didn’t go along.

The solicitor general told the court during last fall’s oral arguments that such surveillance is minimally intrusive; that Fourth Amendment protections did not restrict the monitoring of vehicles on public streets; and that the government used the power sparingly. In making that case, however, the attorney pointed out that under a ruling in the government’s favor, police could install GPS tracking devices on vehicles belonging to anyone without a warrant — even cars owned by the justices themselves.

"Awareness that the government may be watching chills associational and expressive freedoms," Justice Sonia Sotomayor wrote in a concurring opinion. "And the government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse."

Justices wisely recognized that granting police the ability to monitor the movements of any person for any reason without probable cause would be a giant leap toward tyranny.

The defendant, nightclub owner Antoine Jones, was tracked for a month by authorities. Evidence of his movements led to a federal drug conviction and a life sentence. The court said placing the GPS device on the car was akin to a search.

"While this case turned on the fact that the government physically placed a GPS device on the defendant’s car, the implications are much broader," said Steven Shapiro of the ACLU. "A majority of the court acknowledged that advancing technology, like cellphone tracking, gives the government unprecedented ability to collect, store and analyze an enormous amount of information about our private lives."

Although technology no doubt will continue to change, making privacy intrusions even easier with smaller and more powerful devices, the protections enshrined in the Constitution do not change.

If police believe a suspect is a significant threat to public safety, they can follow in their own vehicles or take their case to a judge — via affidavits provided under penalty of perjury — to get a warrant. They are not without options.

While citizens might, at times, unintentionally give up their expectation to privacy, police cannot unilaterally take it.