How Should the Supreme Court Handle Warrantless GPS Tracking?

One of the most anticipated decisions of the current U.S. Supreme Court term is United States v. Jones, which was argued last fall (transcript here).  The case concerns Fourth Amendment protections from GPS tracking of automobiles.   The lower court, the D.C. Circuit, held that the government was prohibited from placing a GPS tracking device on the defendant’s car without a warrant and tracking his movements 24 hours a day for four weeks.  For the D.C. Circuit, it was crucial that the tracking was so extensive, which creates the possibility of a very fact-bound affirmance.  Alternatively, the Court might try to draw some type of bright-line rule that would be of greater assistance to lower courts in deciding future cases, either favorably to GPS tracking or otherwise.

As the Court continues to sort out these issues, the Justices might benefit from reading a new note in the Marquette Law Review by Justin Webb.  Justin’s paper, entitled “Car-ving Out Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction,” argues in favor of the D.C. Circuit’s approach.  The abstract appears after the jump.

In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that aggregation of information about an individual’s movements, over an extended period of time, violated an individual’s reasonable expectation of privacy. Because the D.C. Circuit’s decision gave rise to a circuit split, the Supreme Court granted certiorari to resolve the conflict, and will thus decide one of the most important Fourth Amendment cases since 1983. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court’s decision was correct, insofar as it takes account of the interaction of changing technology and shifting societal notions of privacy. The Note urges the Supreme Court to incorporate an approach similar to Maynard within its Fourth Amendment jurisprudence. The Note concludes that failure to do so will contract already-cramped notions of privacy in the digital age, and facilitate a normative shift in conceptions of privacy that may be detrimental and irreversible.

This Post Has 2 Comments

  1. Nick Zales

    It seems likely the U.S. Supreme Court will reverse the D.C. Circuit and find GPS tracking is not a search or create yet another exception to the warrant requirements of the 4th Amendment.

    What I would like to see is this: Place GPS tracking devices on the cars of the justices and allow the public to track them in real time. I would bet they would all denounce such a suggestion as an invasion of their privacy.

  2. Nick Zales

    Will wonders never cease? The high court rejected Obama’s position and upheld the DC Circuit. Perhaps the justices thought about what I proposed – what if this was done to them.

    I have to say Mr. “Hope and Change’s” legal positions have gone to the right of Bush II – who was the most extreme president in violating people’s rights until Obama took office. As the Chinese proverb goes: May you live in interesting times. These times are surely interesting.

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