Court asked to balance information age advances with constitutional protections

It’s a wide, wired world out there, more so every day, and the Obama administration is asking the Supreme Court to let law enforcement take advantage of it to build cases against the bad guys.

The administration wants the justices to overturn a decision last year by the U.S. Court of Appeals for the D.C. Circuit that said police must get a warrant before launching a long-term surveillance of a suspect using a global positioning device attached to the man’s car.

In overturning the conviction of a D.C. nightclub owner accused of being a prominent cocaine kingpin, Acting Solicitor General Neal Katyal said the appeals court decision was not faithful to a Supreme Court ruling that people have no expectation of privacy when traveling along public streets.

“Prompt resolution of this conflict is critically important to law enforcement efforts throughout the United States,” Katyal told the court in a petition asking them to take the case of United States v. Antoine Jones .

Appeals courts in two other parts of the country have sided with law enforcement on the issue, saying police do not need a warrant for the kind of prolonged surveillance the GPS devices can provide.

The decisions come as judges increasingly are asked to unravel the connection between modern technology and constitutional protections of privacy and against unreasonable searches. GPS devices in cell phones and cars contain a wealth of information about a person’s movements, and a smartphone can provide law enforcement with vast amounts of information.

“This case is really going to confront the court with the problem of adopting the Fourth Amendment to a new information age,” said Daniel Prywes, a Washington lawyer who wrote a brief in the Jones case for the American Civil Liberties Union and the Electronic Frontier Foundation.

“I think it’s the seminal privacy case of the 21st century.”

Jones had been sentenced to life in prison and ordered to surrender $1 million in drug profits before the appeals court overturned his conviction last year. For a month, police had recorded his trips around the Washington area — from his home to Levels, his nightclub in Northeast D.C. — and repeated trips to a stash house in Prince George’s County, where police eventually found mounds of cocaine and $850,000 in cash.

The government contends that the court has already answered the question of whether the surveillance of Jones was proper.

In 1983, the court ruled in United States v. Knotts that police were within their power to track a beeper device they had placed in a can of chemicals used for drug production. “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” it said.

But an ideologically diverse panel of the D.C. circuit was unanimous in saying that the justices in Knotts specifically did not decide the issue of whether a more intrusive government action, such as “twenty-four hour surveillance,” would require a warrant.

Circuit Judge Douglas H. Ginsburg wrote that the 28-day tracking of Jones’s every movement in his Jeep was too much. Although the travel evidence submitted to the jury was all on public streets, he said “the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements . . . is essentially nil.”

While no single trip can prove a pattern of a person’s life, Ginsburg wrote:

“A person who knows all of another’s travels 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.”

When the full circuit declined to review the panel’s decision, Chief Judge David Sentelle provided the opposing arguments for three other dissenters.

A person’s reasonable expectation of privacy while traveling on public highways is zero, he said, and “the sum of an infinite number of zero-value parts is also zero.”

He said the panel’s decision calls into question “any other police surveillance of sufficient length” to establish a pattern.

Katyal told the court that GPS tracking is a vital tool for government in establishing the kind of probable cause necessary to get a warrant. Stifling its use at the early stages of an investigation, he said, “will seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism and other crimes.”

It could be months before the Supreme Court decides whether to take the case.

Robert Barnes has been a Washington Post reporter and editor since 1987. He has covered the Supreme Court since November 2006.
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