JUDY WOODRUFF: Now we turn to the high-profile case before the Supreme Court today, where the justices questioned if the government can track a suspect using a GPS device without a warrant. At the heart of the case is an individual’s constitutionally protected privacy in today’s high-tech world of real-time surveillance.
Here now to bring us the highlights from today’s oral arguments is Marcia Coyle of “The National Law Journal.”
Welcome back, Marcia.
MARCIA COYLE, The National Law Journal: Thanks, Judy.
JUDY WOODRUFF: So, tell us first the facts of the case.
MARCIA COYLE: OK.
The police and the FBI attached a GPS tracking device to the undercarriage of Antoine Jones’ car. Jones was a suspected drug dealer. They didn’t have a warrant. They monitored the movement of the car 24 hours per day for 28 days. Some of the information gathered was used to convict him of conspiracy to deal drugs.
A federal appellate court later reversed his conviction, finding that the use of the GPS device without a warrant violated the Fourth Amendment.
JUDY WOODRUFF: So what is then the question before the justices?
MARCIA COYLE: Well, Judy, as you know, the Fourth Amendment protects us from unreasonable searches and seizures. The Supreme Court has said, in determining whether a search or seizure was unreasonable, you have to look at the individual’s expectation of privacy, and was that expectation reasonable in itself?
So the question here is, did — was there a reasonable expectation of privacy on the part of Jones that the police could not use the GPS tracking device?
JUDY WOODRUFF: So how is new technology — I know GPS has been around for a while. It’s not one of the newest of the new. But how is new technology playing into this argument?
MARCIA COYLE: The court actually faced the new technology a bit last year when it took up a case involving text messages on a pager. And the lower courts are struggling with police use of information from cell phones, smartphones, computers.
It’s a very unsettled area of the law. The GPS tracking device has troubled lower courts as well. So lower courts in particular — and police — are looking for some guidance from the Supreme Court in this particular case.
JUDY WOODRUFF: So, it sounds like today, from what I read, the justices were asking a lot of questions.
MARCIA COYLE: It was a very active argument. It was the government that brought the appeal to the Supreme Court, since they lost below.
And Deputy Solicitor General Michael Dreeben, representing the government, told the justices that earlier Supreme Court cases have said there is no reasonable expectation of privacy when you travel on public roads. The GPS device, he said, exposed nothing that wasn’t already exposed to anyone who cared to look at this car.
And he also said it was no different than if the police had assigned 10 agents to tail Jones’ car for 24 hours a day for a month.
JUDY WOODRUFF: And how did the justices response to this line of argument?
MARCIA COYLE: The justices — a number of the justices seemed very uncomfortable with how far the government’s argument went.
Justice Breyer, for example, said, if you win, you would be able to monitor the movements of every citizen in the United States, and that suggests sort of an Orwellian, “1984” scenario. So he pressed — and so did the other justices — pressed the government on what protection is there here from something like that happening?
And Mr. Dreeben said, well, there are other constitutional principles that can come into play if there are abuses or if the court is afraid that something is chilled here. There’s the First Amendment. There’s equal protection.
But he said, we’re not talking about monitoring every citizen. This is a case where police were monitoring a suspected drug dealer.
JUDY WOODRUFF: And it almost sounded as if, from what I was reading, that when the attorney for the plaintiff came before — for the man who had been convicted came before the justice, they were almost helping his attorney make his argument.
MARCIA COYLE: Well, I think they actually gave him an equally hard time in some respects.
Stephen Leckar was representing Mr. Jones. And, of course, he disagrees with the government. He said no one expects the government to surreptitiously, without a warrant, attach a tracking device to your car and monitor you.
Justice Ginsburg said, well, you know, many cities have cameras attached to traffic lights. And they monitor the movement of cars to look for traffic violations. But Mr. Leckar insists that what’s different here is, this is a physical invasion of property. It’s a greater intrusion on your privacy than cameras or video observation.
JUDY WOODRUFF: So, finally, Marcia, what’s — the sense is, what, that the justices could draw a line, privacy, high-tech device, that they could choose to draw that narrowly, broadly? What?
MARCIA COYLE: They could. There is a narrow way to solve this — or resolve the case. And that is just to look at the attachment of the GPS device, was that a seizure, and not deal with the more complicated issue of search and reasonable expectations of privacy in the world today.
I thought Justice Alito had a — really hit the nail on the head when he said, before the Internet age, our sense of — much of our privacy resulted from difficulty in traveling and gathering information. But with computers, you can now amass a huge amount of information. He said, so what now? Is everything fair game? Or where are the limits?
And that’s what the justices have to juggle. Where — or is there a limit? Is there a line to draw?
JUDY WOODRUFF: Fascinating.
MARCIA COYLE: It is.
JUDY WOODRUFF: Marcia Coyle, thank you.
MARCIA COYLE: My pleasure, Judy.