From Cool to Creepy : Supreme Court To Hear “Big Brother” Concerns Over GPS

We don’t often write about substantive law issues, but when the Supreme Court is about to address something near and dear to us – using technology to improve efficiency – we make an exception.

More often than not, we’re downright giddy when we find ways to use technology to dramatically improve a process (particularly a boring, repetitive, or annoying one)  but we’re all now starting to see applications that do start to cross a line from cool to creepy.

So, while the continuous, rapid evolution of technology makes smiley little Kurweils pop up on our right shoulders, at the same time we get flashbacks of 8th grade English and see a cautious George Orwell ominously spring up on the left.    Consider two very simple, equally plausible scenarios:

1. In the course of a routine investigation, a police officer gets in her cruiser and tails a suspect.

2. In the course of a routine investigation, a police officer secretly attaches a GPS device to a suspect’s car, effectively letting the technology do the following instead of the officer.

Situation #2 is conceptually similar to #1, and also has the benefits of increased accuracy, more comprehensive data, and less expensive implementation.   It also arguably increases police efficiency, insofar as letting an electronic device do the following frees up the officer for other important police matters.   Many would agree that the police are generally understaffed, underfunded, and forced to make difficult law enforcement choices based on economics rather than justice, so giving them better tools to help do the job is generally a good thing.   So …. option #2 is clearly preferable, right? Hardly.

In my own completely unscientific polling experiment, not a single person felt comfortable with option #2.   At least not without a warrant. And that, in a nutshell, is what the Supreme Court will hear arguments on this fall in United States v. Jones.

The Court will analyze whether warrantless electronic tracking is an unreasonable search and seizure. To date, there has been an absence of consensus among the Federal circuits, and existing Supreme Court precedent on the issue is either largely outdated or inapplicable.  Some are calling this the most important Fourth Amendment case in a decade.

Undoubtedly we’ll see more and more cases involving technology being addressed by the Court as its power and availability increases while its cost declines.   It will be very interesting to see both how this Court will address this particular issue, and to see if the Court constructs a framework to address technology-related matters like this; that is, knowing in advance that the precise method or iteration of technology presently at issue may very well be quickly outdated and surpassed itself.

For any lawyer interested in technology, this will be also be a great case to follow over at The Oyez Project.

Is law enforcement’s use of GPS tracking old news, routine, and uncontroversial, or does it represent another subtle chipping away of individual liberties that, at a minimum, must be authorized by a warrant?