Last Monday, January 23, the Supreme Court of the United Statesfailed to answer the big questions about the direction of the Constitutional right to privacy in the face of continued technological progress. United States v. Jones concerned the use of a GPS tracking device placed by government authorities on a car in order to track the movements and eventually convict Jones on drug trafficking conspiracy charges.Â While the Supreme Court unanimously found that privacy rights had been infringed, the majority holding was not that a warrant is required for GPS tracking, but that a warrant is required for the physical act of placing the tracking device on the car combined with the use of the device.Â WithGPS enabled smart phones (and many other devices) now ubiquitous, the importance of that distinction is clear.
While the use of tracking devices may not seem very different from ordinary observance of an individualâ€™s movement that plays an established role in traditional investigations, the ease with which the data can be processed and analysed raises significant privacy concerns.Â The use of a tracking device creates an electronic record of every place a person, vehicle, or thing has travelled.Â Details such as how often a person visits a doctor, attends a religious site, or takes part in a political meeting are quickly accumulated, collated and interpreted.Â With the aid of technological developments, a vast catalogue of data can be created that was not previously possible through â€œmere visual surveillanceâ€.Â This can reveal a lot about a personâ€™s lifestyle, political associations, acquaintances, and friends.Â The value of GPS tracking devices in police investigation and the serious threat GPS devices pose to privacy make it a key area of debate in surveillance law and practice.Â The European Court of Human Rights dealt with its first case concerning GPS tracking in September 2010 in Uzun v. Germany.
While the European Convention on Human Rights describes a positive right to respect for private life, the right to privacy under USlaw is primarily derived from the Fourth Amendment.Â Rather than describing a general right to privacy, the Fourth Amendment protects the right of people to be â€œsecure in their persons, houses, papers, and effects, against unreasonable searches and seizures.â€Â A key difference between US Constitutional protection and Convention protection is the Fourth Amendment focus on the warrant requirement (from a neutral and detached person) and the extensive and cumulative safeguard requirements that the European Courthas read into Article 8 ECHR. (See restatement of Huvig and Kruslin safeguards in Weber and Saravia v. Germany at paragraph 95)
Notwithstanding the differences in formulation, a careful analysis of the implications of the use of GPS tracking devices in investigation could provide a valuable tool to assess the ECHR law on this issue.Â Unfortunately, the analysis of the Supreme Court serves more as an indicator of the difficulties inherent in this area, rife with tension between the public interest and individual rights.
While each Justice agreed that there had been an infringement of the Fourth Amendment, the grounds for that finding clearly differed.Â Justice Scaliaâ€™s majority opinion was joined by Chief Justice Roberts, Justices Kennedy, Thomas, and Sotomayor (She also wrote a separate concurrence).Â The final concurrence, written by Justice Alito (joined by Justices Ginsburg, Breyer, and Kagan) pointed out flaws in the grounds for Justice Scaliaâ€™s holding. Justice Scalia found a breach on the grounds that the placing of the GPS on Jonesâ€™ vehicle, and the use of that device to monitor the vehicleâ€™s movements constituted a â€œsearchâ€ under the Fourth Amendment.Â The narrow ground of the holding was described in the concurring opinion of Justice Alito as â€œunwiseâ€ and â€œhighly artificialâ€.
The decision of the majority to avoid engaging with the broader issues is disappointing, and gives little guidance to USlaw enforcement as to how to proceed in the deployment of this technology.Â Jones v. US gave the Supreme Court the opportunity to rule on this important issue and address whether the statement in United States v. Knotts that â€œa person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movementsâ€ applied to the use of GPS tracking devices.Â With increased pervasiveness of GPS in consumer goods like cars, phones and navigation devices, the opportunities for government authorities to remotely access, track, and analyse location data are constantly increasing.Â The focus of the Court on the physical property rights shows contrived blindness to the growing threat to privacy such technology creates.
The solution the Strasbourg Courthas offered to this issue, of a right to privacy in the public domain, is that private life considerations arise â€œonce any systematic or permanent record comes into existence of … material from the public domain.â€ Following this reasoning, the use of GPS tracking devices are clearly an interference with the Article 8 right to a private life under Convention law.Â However, the Strasbourg Courtconsiders GPS surveillance to be less intrusive than visual or audio surveillance. Accordingly, the â€œminimum safeguardsâ€ required under the Convention in cases of interception of telecommunications do not apply in the GPS context.Â While judicial warrant is not essential under ECHR law, it is considered preferable and independent authorisation is an essential value.Â Yet, due to the perceived lesser nature of the interference in UzunÂ¸ theEuropean Court accepted authorisation by the Prosecution and relied on the subsequent criminal proceedings to provide review as a sufficient safeguard.
While the Convention jurisprudence seems to offer a practical way to view the privacy interference that occurs from the use of modern tracking technology, it shies away from placing limits on national governments.Â The Supreme Court appears to have done the same in Jones.Â By focusing on traditional property rights issues, the Court has â€œkicked the canâ€ on the tracking issue.Â With growing potential for remote tracking and surveillance without the need for any physical intrusion, it seems clear that the Supreme Court has missed an opportunity to tease out a critical rights issue and draw appropriate guidelines.Â