Supreme Court Decision on GPS Surveillance Ripples

Friday, March 23, 2012

Article by Hanni Fakhoury

Supreme Court Decision on GPS Surveillance Sparking Good Court Rulings

The U.S. Supreme Court’s recent ruling that warrantless installation of GPS devices violates the Fourth Amendment – United States v. Jones (PDF) – is already percolating through the court system, which is good news for our privacy rights.  

In a two sentence order (PDF), the Ohio Supreme Court vacated a lower court's opinion that upheld the installation of a GPS device without a warrant, and ordered the court to apply Jones. EFF and a number of civil liberties organizations filed an amicus brief (PDF) in the Ohio case last year, urging just such a result.

The Jones decision has been lauded as a "landmark ruling" and the FBI's own lawyer commented that Jones is perceived as a "sea change" within the FBI. And now its impact is starting to work its way through the judicial system as courts – like the Ohio Supreme Court – are beginning to reexamine prior cases dealing with the warrantless use of GPS devices.

After issuing its opinion in Jones, the Supreme Court in late February issued brief orders (PDF) reversing two other decisions from federal appellate courts that had previously upheld the warrantless use of GPS tracking devices by law enforcement.

One of those decisions was in United States v. Pineda-Moreno (PDF), where the Ninth Circuit Court of Appeals found law enforcement's installation of a GPS device on a suspect's Jeep while it was parked both on public streets and in his driveway did not violate the Fourth Amendment. After the entire Ninth Circuit court refused to reconsider the case, Chief Judge Alex Kozinski lamented (PDF) "1984 may have come a bit later than predicted, but it’s here at last."

In the other case to be reviewed in light of Jones, United States v. Cuevas-Perez (PDF), law enforcement installed a GPS device on a suspect's Jeep and tracked him through New Mexico, Texas, Oklahoma, Missouri, and Illinois. The Seventh Circuit Court of Appeals found the surveillance reasonable under the Fourth Amendment, but Judge Diane Wood dissented, writing the "technological devices available for such monitoring have rapidly attained a degree of accuracy that would have been unimaginable to an earlier generation. They make the system that George Orwell depicted in his famous novel, 1984, seem clumsy." 

The facts of these three cases fit squarely with the holding in Jones, and its likely that on taking a second look, all three courts will find the installation of a GPS device without a warrant unconstitutional. But as we've noted before, Jones is about more than just the physical installation of GPS devices, particularly because physical installation is no longer necessary for many forms of surveillance.

Jones is an important piece in future fights over location privacy and cell tracking and ensuring that the government is unable to track our every move. So as the courts begin to reassess prior cases and the future implications of their decisions, EFF is going to be working hard to stop the march towards a world reminiscent of 1984.

Cross-posted from Electronic Frontier Foundation

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