In a unanimous 9-0 ruling in United States v. Jones, the U.S. Supreme Court has declared that police must get a search warrant before using GPS technology to track criminal suspects. But what does this ruling, hailed as a victory by privacy advocates, really mean for the future of privacy and the Fourth Amendment?
While the Court rightly recognized that the government’s physical attachment of a GPS device to Antoine Jones’ vehicle for the purpose of tracking Jones’ movements constitutes a search under the Fourth Amendment, a careful reading of the Court’s opinion, written by Justice Antonin Scalia, shows that the battle over our privacy rights is far from over.
Given that the operable word throughout the ruling is “physical,” the ruling does not go far enough. The Court should have clearly delineated the boundaries of permissible surveillance within the context of rapidly evolving technologies and reestablishing the vitality of the Fourth Amendment. Instead, the justices relied on an “18th-century guarantee against un-reasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted.”
As Justice Samuel Alito recognizes in his concurring judgment, physical intrusion is now unnecessary to many forms of invasive surveillance. The government’s arsenal of surveillance technologies now includes a multitude of devices which enable it to comprehensively monitor an individual’s private life without necessarily introducing the type of physical intrusion into his person or property covered by the ruling. Thus, by failing to address the privacy ramifications of these new technologies, the Court has done little to curb the government’s ceaseless, suspicionless surveillance of innocent Americans.
In the spirit of the Court’s ruling in US v. Jones, the following surveillance technologies, now available to law enforcement, would not require government officials to engage in a physical trespass of one’s property in order to engage in a search:
Drones — pilotless, remote-controlled aircraft that have been used extensively in Iraq, Afghanistan and Pakistan—are being used increasingly domestically by law enforcement. Law enforcement officials promise to use drones to locate missing children and hunt illegal marijuana plants, but under many states’ proposed rules, they could also be used to track citizens and closely monitor individuals based on the mere suspicions of law enforcement officers. The precision with which drones can detect intimate activity is remarkable. For instance, a drone can tell whether a hiker eight miles away is carrying a backpack.
There's them drones again. Whitehead goes on to list and discuss seven other devices or methods of government surveillance.
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