Reasonable Search - Or Another 'Big Brother' Situation?

The Fourth Amendment to the U.S. Constitution was written to protect American citizens against unreasonable searches and seizures. In 1967, the U.S. Supreme Court ruled (in the case of Katz v. United States), that such protection includes situations where the person has a “reasonable expectation of privacy.” Although Charles Katz was in fact placing illegal gambling wagers, it was nonetheless determined by the Court that it was a violation of his Fourth Amendment rights for the Federal Bureau of Investigation (FBI) to record his conversation while Katz was behind the closed door of a phone booth.

Today, the U.S. Supreme Court is once again faced with determining personal privacy rights as defined by the Fourth Amendment. At the heart of United States v. Jones is a dispute over global positioning system (GPS) technology, which is rapidly becoming a standard feature of smartphones and is often installed in cars, trucks, and other vehicles. The U.S. government – more specifically, the Department of Justice (DOJ) – argues that the FBI’s use of a GPS tracking device to follow the vehicle of suspected drug dealer Antoine Jones did not constitute an unreasonable search. Because law enforcement investigations routinely use the GPS tracking of both cellphones and vehicles, the final decision in this case could lead to a major change in the future of law enforcement strategies.

In the decade that has passed since the terrorist attacks of 11 September 2001, the U.S. government has gained increasingly greater access to personal records – primarily, it is usually argued, to protect the nation against additional terrorist threats. Most U.S. courts have supported the additional powers that the 2001 Patriot Act granted to counterterrorism agents for accessing email accounts and telephones and/or even tracking Internet use – not only secretively but without warrants. One result of this greater latitude permitted for security reasons is that the government now has much greater search and seizure powers than it did in the years prior to the 9/11 attacks. However, the Court must now define, much more precisely, the line drawn between security and privacy as it pertains to and is enhanced by GPS technology.

The question looming is whether developments in technology amend an individual’s “reasonable expectation of privacy.” The Court’s interpretation of what may or should be considered “private” has been brought into question not only by the continuing advances in GPS technology but also by the current generation’s willingness to share – with total strangers on social networking sites – what was once deemed “private information.” During the Jones hearings earlier this month, Justice Stephen Breyer expressed his concern when he told the plaintiff, “If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. … You suddenly produce what sounds like Nineteen Eighty Four [the award-winning novel by George Orwell].”

Do Privacy Rights Trump National Security? 

The concern expressed by Breyer highlights the importance of the Supreme Court’s decision in determining whether continuous GPS surveillance conducted by law enforcement is or should be considered an unconstitutional intrusion on the privacy of an individual citizen. If the Court decides in Jones’s favor, U.S. law enforcement agencies may soon be required to apply for a warrant before attaching a GPS device to a suspect’s car. The Court is now considering a number of complicated factors in the case (which actually started in 2004 with the surveillance of Antoine Jones, a D.C. nightclub owner later arrested, in 2005, and charged with cocaine trafficking). The Court’s decision may well include: (a) a definitive judgment on whether probable cause should be required before GPS technology can be used; or, perhaps (b) reaffirm the government’s case that the use of GPS technology should be permitted to develop the “probable cause” needed by law enforcement for the use of additional high-tech surveillance tools.

For various reasons, whatever decision is made, the warrantless use of new GPS technology raises a serious concern for privacy in the 21st century, particularly if the Court sides with the Jones legal team – which is headed by Catherine Crump of the American Civil Liberties Union (ACLU) and supported by the Electronic Frontier Foundation and several other organizations. As Breyer suggested, the use of modern technology by law-enforcement agencies to combat crime and protect the American people from additional terrorist attacks raises the suspicion of a “Big Brother” government similar to that depicted in Orwell’s 1949 novel. If the ruling is in favor of the government, anywhere and everywhere a person goes, both in the real world and in cyberspace, has the potential of being documented – and unprotected by the Fourth Amendment. The decision in this case therefore could have far-reaching implications for privacy rights in the information age.

On the other hand, GPS surveillance is, from the viewpoint of law-enforcement agencies throughout the nation, an unusually effective working tool that requires fewer personnel hours and is less costly to the government – i.e., to U.S. taxpayers – than would be incurred by having a team of agents physically follow a suspect. By using GPS, the physical man-hours dedicated to surveillance could be applied elsewhere and to other important tasks. In addition, the DOJ also argues, GPS surveillance could and should be considered nonintrusive because it provides information that could normally be observed in public, and for that reason is not much different from the closed-circuit television surveillance coverage legally permitted in the streets of New York, London, and many other cities throughout the world.

Just Another Investigative Tool? Or Not? 

GPS tracking is also uniquely helpful in the normal progression of an investigation. A persuasive argument might even be made, in fact, that GPS tracking is simply “another investigative tool” that for practical purposes is no different than going through a suspect’s trash (which has been done not only by law-enforcement agencies but also by many members of the U.S. media). Moreover, the DOJ team (headed by Solicitor General Donald B. Verrilli Jr. and Assistant Attorney General Lanny A. Breuer) argues that travel on public streets is not, and should not be considered, a private act. As law enforcement offices try to manage reduced budgets, GPS tracking offers a way to monitor suspect activity without having to assign one or more officers to follow each and every investigative case – all day and every day. GPS devices have been particularly useful in monitoring suspected drug dealers routinely moving into and/or out of the country to meet contacts.

The DOJ’s summary argument is that, if the Court rules in favor of the defendant, the decision “would seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism, and other crimes.” There are, in fact, numerous examples in which law enforcement agencies have used GPS tracking to recover stolen vehicles and merchandise, track sex offenders, and monitor suspected terrorists and drug dealers – all at minimal cost, while reducing safety concerns for the officers involved and without jeopardizing the investigation.

The Leahy Bill & Justified Concern – But at What Cost? 

There are currently no constitutional limits to the government’s and law enforcement’s ability to track the movements of people in public spaces and in plain view. Some civil-rights advocates could and do argue that there is justified concern about police using locational tracking technology that is completely unregulated by the Fourth Amendment. Many also will argue that there is a major and substantive difference between the information exposed by an investigative method, and the investigative method itself.

A proposed bill introduced by Senate Judiciary Committee Chairman Patrick Leahy (D-Vt.) would restrict the government from obtaining GPS data from companies without first obtaining a proper warrant. The Leahy bill argues, among other things, that, without a warrant, the government should not “access or use an electronic communications device to acquire geographical location information.” It also would: (1) provide some much needed clarity related to the legal procedures and protections that should apply to electronic devices being used to track the movements of individuals; (2) require the government in most cases to show probable cause and/or to obtain warrants before acquiring the location information of persons under surveillance; (3) create criminal penalties for the surreptitious use of an electronic device to track a person’s movements; and (4) prohibit commercial service providers from sharing with outside entities, and without customers’ consent, the geographical location information of those customers.

Continuing advances in cellular technology and increasing privacy laws have the potential for being a deadly combination – no matter what the Court’s decision. The principal practical argument for GPS tracking, of course, is that it provides more information than usually would be available for most police departments to obtain by simple visual observation. The decision by the Supreme Court in the Jones case, it is hoped, will set forth the reasonable guidelines needed to monitor a technique that is already widely used by law enforcement agencies. Police officers are already faced with a difficult uphill battle of protecting the public – and the continued use of GPS tracking will help them work even more efficiently to safely protect themselves and the citizens within their jurisdictions.

The decision before the Court comes down to determining what is considered “reasonable” and what, or how much, “privacy” should be protected in order to keeping law enforcement officers, and the American people, “safe” – however that sometimes nebulous word is defined. In the more than 60 years that have passed since the publication of Nineteen Eighty Four, there have been astounding leaps in technology. Some and perhaps most of the great leaps forward already made have been widely accepted; other “advances,” though, are not quite as obviously beneficial, and some may in fact be unconstitutional – despite the fact that they may have assisted law enforcement agencies. Today, the legal authority for GPS tracking remains vague, but that may soon change – if and when a comprehensive ruling is made in the case of United States v. Jones.

Richard Schoeberl

Richard Schoeberl, Ph.D., has over 30 years of law enforcement experience, including the Federal Bureau of Investigation (FBI) and the National Counterterrorism Center (NCTC). He has served in a variety of positions throughout his career, ranging from a supervisory special agent at the FBI’s headquarters in Washington, DC, to unit chief of the International Terrorism Operations Section at the NCTC’s headquarters in Langley, Virginia. Before these organizations, he worked as a special agent investigating violent crime, human trafficking, international terrorism, and organized crime. Additionally, he has authorednumerousscholarly articles, serves as a peer mentor with the Police Executive Research Forum, is currently a professor of Criminology and Homeland Security at the University of Tennessee-Southern, and works with Hope for Justice – a global nonprofit combating human trafficking. 

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