{"id":165,"date":"2013-02-01T23:55:10","date_gmt":"2013-02-02T03:55:10","guid":{"rendered":"http:\/\/sites.law.duq.edu\/juris\/?p=165"},"modified":"2013-09-05T00:02:27","modified_gmt":"2013-09-05T04:02:27","slug":"one-year-after-landmark-decision-gps-tracking-law-remains-unclear","status":"publish","type":"post","link":"https:\/\/sites.law.duq.edu\/juris\/2013\/02\/01\/one-year-after-landmark-decision-gps-tracking-law-remains-unclear\/","title":{"rendered":"One Year After Landmark Decision, GPS Tracking Law Remains Unclear"},"content":{"rendered":"
\"Photo<\/a>
Photo courtesy of Smithsonian National Air & Space Museum<\/figcaption><\/figure>\n

by Lauren Gailey, Staff Writer<\/p>\n

A year ago last week, the U.S. Supreme Court handed down an opinion addressing an issue that has become increasingly common in today\u2019s technologically advanced society:\u00a0 is law enforcement\u2019s use of a GPS tracking device to surveil a suspect a \u201csearch\u201d protected by the Fourth Amendment?\u00a0 In United States v. Jones<\/i>, decided on January 23, 2012, the Court answered that question with a \u201cyes\u201d \u2013 seemingly settling the question.\u00a0 The aftermath of the Jones<\/i> decision, however, has been anything but<\/i> settled.<\/p>\n

Interestingly, when faced with such advanced technology, Justice Antonin Scalia and the majority adopted an approach that was anything but novel.\u00a0 Since the Katz<\/i> decision in the 1960s, the Court had determined whether law enforcement\u2019s actions were a search subject to Fourth Amendment protection by asking whether the person being surveilled had a \u201creasonable expectation of privacy\u201d in his or her behavior.\u00a0 In Jones<\/i>, however, the Court returned to the pre-Katz<\/i> approach, which was based on the concept of trespass.\u00a0 The Court held that the agents\u2019 placement of the GPS was a Fourth Amendment search because law enforcement agents did not have a warrant when they trespassed on the suspect\u2019s vehicle by attaching the GPS device, which they then used to surveil him.<\/p>\n

\u201cIronically,\u201d Justice Samuel Alito quipped in his scathing concurrence, \u201cthe Court has chosen to decide this case based on 18th-century tort law.\u201d\u00a0 Justice Alito predicted that, because Jones\u2019<\/i> holding was rooted in property concepts, it would \u201cpresent particularly vexing problems\u201d when applied to electronic surveillance.<\/p>\n

In the year since Jones<\/i> was decided, the federal district and circuit courts have been confronted with many of these electronic surveillance decisions \u2013 and, based on those cases, Justice Alito\u2019s prediction appears to have been correct.\u00a0 The federal courts\u2019 handling of Jones<\/i> has varied widely, perhaps due to the many important questions left open by the Court.\u00a0 For example, whether the Jones<\/i> framework applies at all outside the GPS-tracking arena is unclear, and most courts that have taken up that question \u2013 including the first Circuit to do so, the Sixth, in a cell phone surveillance case \u2013 have sidestepped Jones<\/i> and applied the old Katz<\/i> test instead.<\/p>\n

Interestingly, although Justice Scalia said otherwise in the majority opinion, the decision has seemingly called the continued validity of the Katz<\/i> test into question entirely in this context.\u00a0 Where the federal courts continue to use it, many apply Katz<\/i> in lieu of Jones<\/i> where the facts permit.\u00a0 Others attempt to apply both tests simultaneously, and still others use Katz<\/i> as a \u201cfall-back\u201d where the surveillance at issue is found not to be a Fourth Amendment search under Jones<\/i>.<\/p>\n

The Court also did not answer the question of whether any exceptions to the Fourth Amendment\u2019s warrant requirement apply to GPS \u201csearches.\u201d\u00a0 Many of the lower courts have, in absence of any direction, permitted exceptions such as agents\u2019 good-faith reliance on binding and, in some cases, non-binding appellate precedent.\u00a0 Clearly, the federal courts\u2019 approaches to the Jones<\/i> decision have been heavily fragmented, and the state courts that have been faced with electronic surveillance cases have experienced similar problems.<\/p>\n

The unfortunate coincidence is that, given the game-changing significance of the Jones<\/i> decision for law enforcement, legal uniformity and certainty would seem to be all the more critical.\u00a0 Former FBI counterterrorism official Ray Mey explained to USA Today<\/i> that, due to the limitations of vehicle surveillance, the attachment of GPS devices to suspects\u2019 vehicles \u201cis one of the only ways to pinpoint the locations of suspects.\u201d\u00a0 In the immediate aftermath of Jones<\/i>, the FBI seemed to adopt a \u201cbetter-safe-than-sorry\u201d approach to GPS tracking.\u00a0 In fact, FBI General Counsel Andrew Weissman told a Wall Street Journal blogger in February of last year that the agency had shut off 3,000 of its devices that were in use at the time the Jones<\/i> decision came down.<\/p>\n

Now that the law enforcement agencies have had time to adjust to the new legal landscape, however, the extent of the limitations on their use of technologies like GPS tracking has become much less clear.\u00a0 According to the American Civil Liberties Union\u2019s website, the Department of Justice has prepared internal memoranda about the applicability of Jones<\/i> to the investigative process, but released heavily redacted versions in response to the ACLU\u2019s disclosure request.\u00a0 Last month, the DOJ refused to release the unredacted memoranda, and the ACLU has said that it will ask the court to order the DOJ to do so under the Freedom of Information Act.<\/p>\n

Despite the legal uncertainty that has followed Jones<\/i>\u2019 interpretation of the Fourth Amendment, what is certain is that warrantless GPS tracking by law enforcement has earned its share of detractors on the federal bench.\u00a0 Dissenting in a pre-Jones<\/i> case that ruled a similar use of warrantless GPS tracking constitutional, Judge Diane Wood of the Seventh Circuit stated that such searches \u201cmake the system that George Orwell depicted in his famous novel, 1984,<\/em> seem clumsy and easily avoidable by comparison.\u201d<\/p>\n

[Read the full text of the Jones<\/i> decision here<\/a>.]<\/p>\n

 <\/p>\n

Lauren Gailey is a second-year student who has studied at Georgetown University and the University of Pittsburgh, where she earned bachelor\u2019s degrees in Marketing and Communication and Rhetoric.\u00a0 Lauren has interned in the Office of the United States Attorney for the Western District of Pennsylvania.\u00a0 Before law school, she worked as a producer of a cable television news-talk show.<\/i><\/p>\n

 <\/p>\n

 <\/p>\n","protected":false},"excerpt":{"rendered":"

by Lauren Gailey, Staff Writer A year ago last week, the U.S. Supreme Court handed down an opinion addressing an issue that has become increasingly common in today\u2019s technologically advanced society:\u00a0 is law enforcement\u2019s use of a GPS tracking device to surveil a suspect a \u201csearch\u201d protected by the Fourth [\u2026] <\/p>\n

<\/div>\n

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