Saturday, September 17, 2011

The Cautionary Instruction: Orwell, Glogal Positioning Systems and the U.S. Supreme Court

The Pittsburgh Post-Gazette/Ipso Facto
September 17, 2011

In 1949, George Orwell published Nineteen Eighty-Four, a novel. Orwell describes a futuristic state, its leader Big Brother and the constant use of surveillance to maintain order. More than half-a-century later, Orwell’s book is drawing a lot of comparisons to global positioning system (GPS) technology used in modern law enforcement investigations.

GPS, in development since as early as 1959, came into its own during the first gulf war. The desert-based war was the first combat use of GPS, and it was hugely successful.  Law enforcement quickly realized the potential for GPS and many civil libertarians were quick to realize the technology’s impact on civil liberties.

The U.S. Supreme Court will hear a case this fall that will try to reconcile what was once considered science fiction with the reality of everyday life. At stake are the fundamental protections of the Fourth Amendment, freedom from “unreasonable search and seizure.”

In United States v. Jones, the Supreme Court will hear arguments regarding what some consider to be the most important Fourth Amendment case in a decade. The justices will address a question that has divided the lower courts: Do the police need a warrant to attach a GPS device to a suspect’s car and track its movements for weeks at a time?

In 2005, police investigating alleged drug activity secured a warrant, valid for 10 days, from a federal judge who authorized the attachment of a GPS device to a vehicle registered to the wife of Antoine Jones. The attachment of the device was authorized to occur in Washington, D.C. Instead, investigators attached the device while the car was parked in Maryland. The GPS device was used to record Jones’ movements around-the-clock for four weeks -- without seeking a time extension from the court.

In overturning Jones’ conviction, Federal Judge Douglas H. Ginsburg wrote, “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups -- and not just one such fact about a person, but all such facts.”

In the Jones case, the Government is arguing that GPS devices can be especially helpful in the early stages of an investigation as the police gather evidence. Requiring a warrant could hurt the government's ability to investigate drug trafficking, terrorism and other crimes.

Jones’ attorneys argued, "The advent of satellite-based tracking technology has enabled the government to engage in 24-hour tracking of the movements of any private citizen for extended -- indeed unlimited -- periods of time.”

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