In this high-tech age, it is easier than ever for the government to spy on its citizens. But the Supreme Court may be about to make it a bit harder, by putting limits on when the government can plant a GPS device on someone’s car. A strong pro-privacy ruling would be an important step in pushing back against rising Big Brotherism.
The Supreme Court heard arguments last week in United States v. Jones, a case that posed a simple question: Does the Constitution require the police to get a search warrant before they put a GPS device on a car? The government says no, because a GPS device just monitors people driving on public roads — and there is no right to privacy in driving down a public road.
Privacy advocates disagree. They say that a single drive down a public road may not be private. But when the government installs a GPS device on your car, it can monitor everywhere you go for months or years. That allows it to compile a dossier on your whole life: the government can electronically record when you go to church or temple or mosque. It can keep track of whether you go to the abortionist, a gay bar or Alcoholics Anonymous. It can record whose house you are sleeping over at. The government does not have enough law enforcement agents to follow Americans this closely — but technology like GPS makes it cheap and easy to do close surveillance on a mass scale. Suddenly, Big Brother feels very real.
The government’s argument that it does not need a search warrant relies heavily on a 1983 Supreme Court case, United States v. Knotts, which said that the police do not need a warrant to install a beeper on a truck to monitor its movements. “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” the court said. So why should a GPS device be any different? Beepers were a primitive form of monitoring technology. GPS devices give the government a lot more information — and it is much easier to store this data, cross reference it, and create elaborate digital dossiers.
The federal appeals court in Washington, D.C. that heard the GPS case came up with a smart way of looking at the problem — which it called the “mosaic theory.” When the government collects enough small pieces of information about you that are not themselves private, the accumulation of data points can be what constitutes the privacy invasion. The whole picture of your life that the government gets is greater than the sum of the parts.
Make no mistake: the amount of data being collected on ordinary Americans these days is staggering. Cell phone companies keep records of where you go with your phone. Google stores your Internet searches, and your Internet Service Provider may keep track of what websites you visit. Yahoo, Microsoft, and Google hold your your old emails.
Going into last week’s argument, it was not clear how the Justices felt about these technology-and-privacy issues. Although it is always risky to predict what the court will do, it seems likely that it will rule that the Fourth Amendment requires law enforcement to get a search warrant before they can install a GPS device on your car. (A decision is expected before the court’s term ends in June.) That would be a very good thing: if warrants are required, the government could only install GPS devices when it has good reason to suspect that the target has broken the law.
There was one exchange last week that was especially encouraging. Chief Justice John Roberts asked if the government was arguing that the police could put a GPS device on his car — and the cars of the other Justices — without a warrant. Yes, the lawyer said, they could. The Chief Justice seemed to regard that possibility with alarm. “So your answer is yes, you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month, no problem under the Constitution?” That’s right, the government lawyer said. It may have been the moment when the Justices realized just how grave a privacy invasion warrantless GPS monitoring of private citizens is — and when the government lost its case.