The Jones case involves one of the most ubiquitous pieces of technology in modern life: a Global Positioning System device. Antoine Joneswas convicted in the District of Columbia in 2008 on drug charges after police followed him for 28 days with a secretly installed GPS device that monitored his location.
This surveillance continued after a warrant had expired. But the Obama administration insists that no warrant should be required for the government to track the movements of citizens with such devices. The administration says that the new technology merely captures what can be observed, albeit in far greater detail. But the technology could allow the government to follow an almost limitless number of citizens in real time, all the time. If successful in its argument, the Justice Department would expand the powers of the government to spy on citizens to what Justice Stephen Breyer called Orwellian proportions.
Privacy appears to be in a vicious 40-year cycle. In Katz, the court was dealing with decades of increasing surveillance under the “trespass doctrine,” established in 1928, which allowed the government to conduct warrantless surveillance so long as it did not physically trespass on the property of a citizen. When the court created the ill-conceived doctrine, technology was already making the trespass test meaningless. With new devices, agents could listen to conversations without entering a home or office. This is why the court’s pronouncement that the Constitution “protects people, not places” was such a victory for civil liberties. But what if the people don’t care?
Under the Katz test, warrants would be needed when there is a “reasonable expectation of privacy” by a citizen. But that standard laid the foundation for the demise of privacy. As we come to expect less privacy, we are entitled to less of it.
As warrantless surveillance rises, our expectations fall, allowing such surveillance to become more common. The result is a move toward limitless police powers. Those declining expectations are at the heart of the Obama administration’s argument in Jones, where it insists that the government is free to track citizens without warrants because citizens expect to be monitored.
The United States was once defined by an intense commitment to privacy, with far greater protection than was found in some of our closest allies, such as Britain. That was already changing, however, when the Katz decision was handed down. The erosion of privacy sped up as new rulings joined new technology in creating more transparency in society in the 1970s and 1980s. The court chipped away at citizens’ expectations with a long line of exceptions to the rules for when a warrant is necessary — allowing the government to pat down citizens, review their bank records, intercept the telephone numbers they dial, search their cars, search travelers at borders and airports, and perform an array of other searches deemed “reasonable.” Those exceptions have now swallowed the rule, so that more searches today are done without warrants than with them.