If you have a cell phone, you can be tracked. Your Blackberry, your iPhone — even your antique non-Internet-enabled handheld — is constantly seeking out cell towers, essentially letting your service provider know where you are, several times a minute. Smart phones also use GPS to help you with everything from driving directions to discovering restaurants to tracking your friends’ movements in real time. Consumers have come to rely on these location-specific services. Cell phone tracking is simply a part of our lives.
But what if it wasn’t just cell phones? What if your car, your clothes, your briefcase, your wallet, could be tracked, at any time, for any reason? What if data about your movements could be used to deduce sensitive personal information, like who you meet for lunch, what social or political groups you belong to, whether you’re faithful to your spouse? What if the ones doing the tracking weren’t cell phone companies, but government officials? And what if they could track you surreptitiously, without your knowledge?
If this scenario seems far-fetched, it isn’t. Not only is it possible, but if the federal government gets its way, it may actually come to pass.
The Supreme Court heard arguments Tuesday in a case that could have vast implications for privacy in our new era of rapid technological development. The high court debated whether the police should be able to use GPS devices to track the movements of people suspected of crimes without first obtaining a valid warrant. The specific case in question, United States v. Jones, involves a suspect who the police tracked for 28 days straight by placing a GPS device on his car without first seeking a court order.
The Jones case itself has very narrow parameters — whether the police violated the Fourth Amendment prohibition on “unreasonable searches and seizures” by placing the GPS device on the suspect’s car. But, depending on how the justices decide the case, their ruling could have far-reaching implications for all kinds of technological surveillance, especially cell phone tracking. And in the hearing Tuesday, those implications seemed to weigh heavily on the justices’ minds.
“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,” Justice Stephen Breyer told Michael Dreeben, the deputy solicitor general, who argued the government’s case. Breyer compared the scenario to George Orwell’s dystopian classic “1984.” Chief Justice John Roberts pointedly asked Dreeben if, according to the government’s case, the FBI could place GPS devices on the cars of the justices themselves and track their movements: “You think you’re entitled to do that under your theory?”
Dreeben acknowledged that, under the government’s theory, the justices would be fair game for GPS tracking as long as they were on public roadways. Some of the justices seemed taken aback by that answer. “I think you answered the question that the government’s position would mean that any of us could be monitored whenever we leave our — our homes,” Justice Ruth Bader Ginsburg told Dreeben. “That is the end point of your argument, that an electronic device, as long as it’s not used inside the house, is okay.”
Most of the justices’ questions, in fact, dealt in some way with what Ginsburg called the “end point” of the government’s argument: If the government can track any Americans’ movements without a warrant, what happens next? “There are now satellites that look down and can hone in on your home on a block and in a neighborhood,” Justice Sonia Sotomayor noted. “I don’t see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place.”
The questions raised by those futuristic scenarios, however, proved especially difficult for the justices to resolve, because the Fourth Amendment does not provide clear, easy answers.
Today’s technology, of course, was unforeseeable to the Founding Fathers. The Fourth Amendment they penned declares that Americans “shall be secured in their persons, houses, papers and effects against unreasonable searches and seizures.” It’s not so clear whether a car should count among those items, and whether public roadways and the data collected from GPS devices attached to cars are subject to the same privacy expectations as private homes. The GPS case, then, poses an especially pesky problem for the “strict constructionists” on the court, like Justice Antonin Scalia, who tend to defer to the narrow language of the Constitution and leave the unanswered questions to legislatures rather than courts.
The case also poses a challenge to the justices in deciding whether to issue a broad ruling that tackles the big Constitutional questions — like whether tracking a person’s movements counts as an “unreasonable” search and seizure — or a narrow ruling that pertains only to the specific circumstances of the Jones case. The rapid pace at which technology changes means any ruling the justices issue today could end up being irrelevant in just a few years.
And as Justice Samuel Alito noted, as technology changes, our attitudes about privacy change, too.
“Maybe 10 years from now 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones,” Alito said. “What would the expectation of privacy be then?”