01 February 2013

One Year After Landmark Decision, GPS Tracking Law Remains Unclear

by Lauren Gailey, Staff Writer 
         A year ago last week, the U.S. Supreme Court handed down an opinion addressing an issue that has become increasingly common in today’s technologically advanced society:  is law enforcement’s use of a GPS tracking device to surveil a suspect a “search” protected by the Fourth Amendment?  In United States v. Jones, decided on January 23, 2012, the Court answered that question with a “yes” – seemingly settling the question.  The aftermath of the Jones decision, however, has been anything but settled.

© Smithsonian National Air & Space Museum
Interestingly, when faced with such advanced technology, Justice Antonin Scalia and the majority adopted an approach that was anything but novel.  Since the Katz decision in the 1960s, the Court had determined whether law enforcement’s actions were a search subject to Fourth Amendment protection by asking whether the person being surveilled had a “reasonable expectation of privacy” in his or her behavior.  In Jones, however, the Court returned to the pre-Katz approach, which was based on the concept of trespass.  The Court held that the agents’ placement of the GPS was a Fourth Amendment search because law enforcement agents did not have a warrant when they trespassed on the suspect’s vehicle by attaching the GPS device, which they then used to surveil him.
© Smithsonian National Air & Space Museum
“Ironically,” Justice Samuel Alito quipped in his scathing concurrence, “the Court has chosen to decide this case based on 18th-century tort law.”  Justice Alito predicted that, because Jones’ holding was rooted in property concepts, it would “present particularly vexing problems” when applied to electronic surveillance.
In the year since Jones was decided, the federal district and circuit courts have been confronted with many of these electronic surveillance decisions – and, based on those cases, Justice Alito’s prediction appears to have been correct.  The federal courts’ handling of Jones has varied widely, perhaps due to the many important questions left open by the Court.  For example, whether the Jones framework applies at all outside the GPS-tracking arena is unclear, and most courts that have taken up that question – including the first Circuit to do so, the Sixth, in a cell phone surveillance case – have sidestepped Jones and applied the old Katz test instead.
Interestingly, although Justice Scalia said otherwise in the majority opinion, the decision has seemingly called the continued validity of the Katz test into question entirely in this context.  Where the federal courts continue to use it, many apply Katz in lieu of Jones where the facts permit.  Others attempt to apply both tests simultaneously, and still others use Katz as a “fall-back” where the surveillance at issue is found not to be a Fourth Amendment search under Jones.
The Court also did not answer the question of whether any exceptions to the Fourth Amendment’s warrant requirement apply to GPS “searches.”  Many of the lower courts have, in absence of any direction, permitted exceptions such as agents’ good-faith reliance on binding and, in some cases, non-binding appellate precedent.  Clearly, the federal courts’ approaches to the Jones decision have been heavily fragmented, and the state courts that have been faced with electronic surveillance cases have experienced similar problems.
            The unfortunate coincidence is that, given the game-changing significance of the Jones decision for law enforcement, legal uniformity and certainty would seem to be all the more critical.  Former FBI counterterrorism official Ray Mey explained to USA Today that, due to the limitations of vehicle surveillance, the attachment of GPS devices to suspects’ vehicles “is one of the only ways to pinpoint the locations of suspects.”  In the immediate aftermath of Jones, the FBI seemed to adopt a “better-safe-than-sorry” approach to GPS tracking.  In fact, FBI General Counsel Andrew Weissman told a Wall Street Journal blogger in February of last year that the agency had shut off 3,000 of its devices that were in use at the time the Jones decision came down.
© ACLU.org
Now that the law enforcement agencies have had time to adjust to the new legal landscape, however, the extent of the limitations on their use of technologies like GPS tracking has become much less clear.  According to the American Civil Liberties Union’s website, the Department of Justice has prepared internal memoranda about the applicability of Jones to the investigative process, but released heavily redacted versions in response to the ACLU’s disclosure request.  Last month, the DOJ refused to release the unredacted memoranda, and the ACLU has said that it will ask the court to order the DOJ to do so under the Freedom of Information Act.
Despite the legal uncertainty that has followed Jones’ interpretation of the Fourth Amendment, what is certain is that warrantless GPS tracking by law enforcement has earned its share of detractors on the federal bench.  Dissenting in a pre-Jones case that ruled a similar use of warrantless GPS tracking constitutional, Judge Diane Wood of the Seventh Circuit stated that such searches “make the system that George Orwell depicted in his famous novel, 1984, seem clumsy and easily avoidable by comparison.”

[Read the full text of the Jones decision here.]

Lauren Gailey is a second-year student who has studied at Georgetown University and the University of Pittsburgh, where she earned bachelor’s degrees in Marketing and Communication and Rhetoric.  Lauren has interned in the Office of the United States Attorney for the Western District of Pennsylvania.  Before law school, she worked as a producer of a cable television news-talk show.