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If two recent court decisions are any indication, technology and privacy are at increasing loggerheads with each other. Last Monday, the Supreme Court of the United States (SOTUS) ruled that attaching a Global Positioning System (GPS) device to a suspect’s vehicle cannot be done without first obtaining a search warrant. But in another ruling on the same day, Colorado U.S. District Judge Robert Blackburn ordered a Colorado woman to decrypt her own laptop computer so that prosecutors may use any evidence produced against her in a criminal case. The judge dismissed the defendant’s contention that doing so would constitute a violation of the Fifth Amendment’s protection against self-incrimination.
Both of these cases are problematic. In the unanimous ruling by SOTUS on United State v. Jones, the court made it clear that attaching a GPS device to a vehicle is a “physical trespass” that constitutes a search under the Fourth Amendment of the U.S. Constitution, which protects the “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
Oddly enough, the government did initially get a search warrant to apply a GPS device to the car of Antoine Jones, the owner and operator of a nightclub in the District of Columbia, who was suspected of being a drug dealer. The warrant was issued in 2005, authorizing the use of an electronic tracking device on the Jeep Grand Cherokee registered to Jones’s wife. The GPS was supposed to be attached in DC and within 10 days, yet the agents involved missed on both counts. The device was attached on day 11 and in the state of Maryland. After tracking Jones for 28 days, the government issued a multiple-count indictment charging Jones and accomplices with possessing and distributing cocaine.
Jones moved to have the evidence obtained by the GPS suppressed. The District Court gave him partial relief, noting that data obtained while Jones’s car was parked in the garage adjoining his residence could not be used, while the remaining data was admissible because a “person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
The first trial in 2006 produced a hung jury. In 2007, the government used the same GPS data allowed in the first trial and got a conviction with Jones being sentenced to life in prison. United States Court of Appeals for the District of Columbia Circuit reversed the decision citing the Fourth Amendment. SOTUS concurred.
Yet the judges were split 5-4 over the reasoning behind the decision. The four minority justices wanted a wider understanding of privacy concerns, noting that the installation of a GPS tracker not only constituted trespassing on private property, but also infringed on the suspect’s “reasonable expectation of privacy” due to the government monitoring his movements for a month. The majority opted for a narrowed interpretation of the decision, noting that the act of putting the GPS device on the car was tantamount to a warrantless home search.
Justice Antoin Scalia wrote for the majority. “The Government physically occupied private property for the purpose of obtaining information. 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,” he contended. He was joined by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas and Sonia Sotomayor. Justice Samuel Alito wrote for the minority. Limiting Fourth Amendment protections to trespassing property as understood in 1791 “is unwise” and “highly artificial,” he argued. “It is almost impossible to think of late-18th-century situations” analogous to placing a GPS tracker on a car, unless one imagined “a gigantic coach, a very tiny constable, or both.” He was joined Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan.
This is the first ruling in an expected flood of cases with respect to technology versus privacy. Yet even as the Supreme Court was ostensibly clearing up one aspect of this arena, Colorado U.S. District Judge Robert Blackburn was muddying the waters at the same time. “I conclude that the Fifth Amendment is not implicated by requiring production of the unencrypted contents of the Toshiba Satellite M305 laptop computer,” the judge contended.
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