BY:  NATE RICHMAN

On Tuesday, November 8, the Supreme Court will hear arguments on whether police need a warrant to track a suspect’s vehicle with a global positioning system (“GPS”) device.[1] In Jones, both the FBI and the Washington D.C. police department suspected nightclub owner Antoine Jones of trafficking cocaine.[2] The police obtained a ten-day warrant to track Jones’ movements with a GPS device placed on his car.  However, they were unable to install the GPS until after the warrant had expired and subsequently used the tracking data to obtain evidence that led to Antoine Jones’ conviction.[3] Consequently, Jones is the latest case involving constitutional privacy rights and police use of data from new technologies such as cell phones, beepers and computers.[4]

The significance of Tuesday’s hearing has not been lost to the legal community.  For example, Erwin Chemerinsky, Dean of University of California – Irvine Law School, wrote that “[a]t the heart of this case is the question of how the reasonable expectation of privacy is to be determined with regard to relatively new technology.”[5] More  specifically, the Supreme Court will have to consider whether the police violated Jones’ Fourth Amendment rights by putting a GPS device on his car without a valid warrant or his consent.  Presently, the D.C. Circuit and the 7th Circuit are split on this issue.[6] The United States government therefore appealed to the Supreme Court, arguing that the issue was critical to national law enforcement efforts.[7] Indeed, the government has argued that requiring a warrant would be detrimental to law enforcement’s ability to investigate drug trafficking, terrorism and other crimes.[8] In fact, Solicitor General Donald Verrilli has gone so far as to tell the Supreme Court that “no evidence exists of widespread, suspicion-less GPS monitoring.”[9] However, Stephen Leckar, Jones’ attorney, believes that government GPS surveillance “empowers the government to engage in indiscriminate and perpetual monitoring of any individual’s movements.”[10] Prolonged GPS use allowed the government to store data that cannot be obtained by visual surveillance.

The Jones case is highly controversial, and its outcome is far from certain.  As Orin Kerr, a professor at George Washington University Law School, notes “with the current Court, the government usually has the advantage in Fourth Amendment cases…That’s probably true here.  But Jones may cobble together votes from the more civil libertarian justices on the left and the more libertarian, property-minded justices on the right.”[11] Regardless of how the justices vote, one thing is certain: the Supreme Court’s ruling in this case will have a tremendous impact on privacy rights in the digital age of technology.  Time will tell what that impact will be.