Supreme Court Rules that a Warrant is Necessary for GPS Tracking

The Supreme Court ruled unanimously on Monday, January 23, 2012 that police must get a search warrant before they attach a GPS device to a suspect’s car.  The decision, however, is also notable for the privacy issues it does not settle.

In separate opinions, the justices raised questions about how much privacy people can expect as they buy GPS-enabled smartphones and cars equipped with tracking devices meant for safety, but which may be susceptible to misuse by government – even as they agreed that the FBI went too far in this case.

A key element of the ruling is in applying the Fourth Amendment’s protections to surveillance technology.  "The Supreme Court today made it clear that it will not allow advancing technology to erode the Constitutional right of privacy," said Gregory T. Nojeim for the Center for Democracy and Technology (CDT).

Andrew Pincus, who submitted an amicus brief for CDT on this case, wrote a detailed five-point analysis of the decision:

“First, the decision is a significant rebuke to the government, which broadly argued that GPS surveillance does not even trigger Fourth Amendment scrutiny. No Justice accepted that position.

Second, the Court's opinion makes clear that the government must obtain a warrant for any physical intrusion on private property, no matter how insignificant.

Third, a majority-five Justices-agreed that even without a physical intrusion, GPS surveillance may violate the Fourth Amendment.  Importantly, the other four Members of the Court did not reject that position, they simply declined to address the question.

Fourth, the decision leaves the line between constitutional and unconstitutional GPS surveillance unclear.  Although four Justices view the length of the surveillance, and the nature of the offense being investigated, as critical factors, Justice Sotomayor does not-she believes the use of GPS surveillance generally violates the Fourth Amendment-and the views of the other Members of the Court are unknown.

Fifth, Justice Alito's opinion for four Justices quite clearly signals that they believe Congress should address this matter.  By (1) pointing explicitly to Congress's legislative action in the wake of the Court's Katz decision holding that wiretaps violated the Fourth Amendment; (2) noting that Congress and state legislatures have not acted with respect to GPS surveillance; and (3) then stating that "[t]he best that we can do in this case" is to make a fact-specific ruling and not adopt a clear, across-the-board rule, these Justices are emphasizing that, in their words, "[a] legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way."

EDUCAUSE is a member of the Digital Due Process Coalition that has called on Congress to require a warrant for cell phone tracking.  EDUCAUSE will continue to monitor and report on these privacy and surveillance issues.