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January 23, 2012

Supreme Court Unanimously Shoots Down GPS Jackbootery

But the rationale is still in dispute. The justices were divided 5-4 on why the warrantless use of a GPS tracking device on a vehicle violates the Fourth Amendment.

But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.

. . .

The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, saying the sheer amount of information that had been collected violated the Fourth Amendment, which bars unreasonable searches.

The Supreme Court affirmed that decision, but on a different ground. “We hold that the government’s installation of a G.P.S. device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’ ” Justice Antonin Scalia wrote for the majority.

. . .

In a concurrence for four justices, Justice Samuel A. Alito Jr. faulted the majority for trying to apply 18th-century legal concepts to 21st-century technologies. What should matter, he said, is the contemporary reasonable expectation of privacy.

So the decision is narrow, and it leaves open many questions. But, for now, it's still a nice swat from a rolled-up Constitution. More from The Volokh Conspiracy.


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