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1/23/2012
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Supreme Court Tackles GPS Tracking Vs. Privacy

Government violated the Fourth Amendment when it attached a GPS tracking device to a car without a warrant, the court rules.

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The Unites States Supreme Court on Monday upheld a Court of Appeals decision that placing a tracking device on a vehicle without a warrant violates Fourth Amendment protection against unreasonable searches and seizures.

Writing for the majority, Justice Antonin Scalia delivered a ruling that affirms private property rights and limits how the U.S. government can employ surveillance technology.

"It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information," Scalia wrote. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

The plaintiff in the case, Antoine Jones, a Washington, D.C., nightclub owner, was indicted for dealing drugs based on data obtained through a GPS tracking device that police had attached to his wife's vehicle. Jones was found guilty and sentenced to life imprisonment in 2007. His conviction was reversed by the U.S. Court of Appeals in Washington, D.C., because his rights under the Fourth Amendment had been violated.

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Scalia and those joining his opinion--Chief Justice John G. Roberts and Justices Anthony M. Kennedy, Sonia Sotomayor, and Clarence Thomas--did not resolve whether electronic surveillance conducted without violating a person's property rights--tracking a cell phone location via its signal, for example--might represent an unreasonable search. "...[T]he present case does not require us to answer that question," Scalia wrote.

Privacy and security researcher Christopher Soghoian suggested in a comment on Twitter that lack of legal clarity about the permissibility of warrantless cell phone tracking paves the way for the government to continue such surveillance.

However, in hailing the "landmark ruling," Gregory T. Nojeim, director of the Center for Democracy & Technology's Project on Freedom, Security and Technology, said in a statement that the majority of the justices indicated that a warrant would have been required even if no trespass of private property had occurred, and urged Congress to build on this opinion by passing a law that requires the government to get a warrant before tracking people through cell phones, except in emergencies.

Marcia Hofman, senior staff attorney for the Electronic Frontier Foundation, said in a phone interview that the decision "shows loud and clear that the Supreme Court recognizes the dangers to privacy represented by new and emerging technologies. The court wants to make sure that privacy protections remain intact despite the fact that new technologies could be used to invade privacy."

Although she observed that the ruling avoids defining when purely electronic surveillance might violate Fourth Amendment protections, Hofman said she's encouraged that a good number of justices seem willing to consider the possibility that tracking alone, without physical intrusion, might violate privacy protections.

The debate about the limits of lawful surveillance is certain to continue, but privacy advocates appear to have found a friend in Associate Justice Sotomayor. In a concurring opinion, she wrote, "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties."

Sotomayor suggested that secrecy should not necessarily be a prerequisite for Fourth Amendment protection, a view that if broadly supported could extend personal privacy rights to data that people share with companies and impose a greater burden on government demands for that data from parties such as AT&T, Facebook, and Google.

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