Emily Babay

The Washington Examiner

By Emily Babay

The Supreme Court heard arguments Tuesday about police use of GPS tracking without a warrant, appearing deeply disturbed by unlimited use of the technology but uneasy about whether and how to regulate it.

The justices likened their concerns to George Orwell’s dystopian novel “1984” in oral arguments in the case of Antoine Jones, a District nightclub owner was arrested in 2005 on cocaine-distribution charges after police placed a GPS device on his vehicle without a valid warrant and tracked the car for a month.

“If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States,” Justice Stephen Breyer told Deputy Solicitor General Michael Dreeben, who argued the case for the Justice Department. Breyer added such tracking would “suddenly produce what sounds like ‘1984.’”

Dreeben asserted that using GPS to track vehicles was akin to visual surveillance. The Supreme Court held in a 1983 case that people have no expectation of privacy on public roads. But that case involved a beeper device that helped police maintain a visual on the vehicle during a single trip.

“That seems to me dramatically different,” Chief Justice John Roberts said.

The court is not known for its grasp of new technologies, but the justices seemed perturbed by the scenarios they envisioned if warrantless monitoring were allowed.

“With computers, it’s now so simple to amass an enormous amount of information about people,” Justice Samuel Alito said.

Roberts appeared alarmed when Dreeben said placing a GPS on all of the justices’ cars and tracking them for a month posed no constitutional violation.

The justices peppered Dreeben with questions about the implications of long-term, warrantless surveillance, but also pressed Jones attorney Stephen Leckar about how limits could be defined.

Justice Elena Kagan noted that surveillance cameras are pervasive in cities like London.

“How is this different?” she asked.

Leckar suggested that a short trip might be permissible to track without a warrant, but could not clearly articulate what a workable rule for law enforcement might be. He maintained that police violated Jones’ Fourth Amendment rights simply by placing the device on his vehicle.

Justice Anthony Kennedy told Dreeben he had “serious reservations” about how the GPS was installed.

The justices could rule solely on the installation issue and leave the questions about prolonged tracking for another case.

The case went to the Supreme Court after the Court of Appeals for the D.C. Circuit ruled last year that the warrantless monitoring violated Jones’ reasonable expectations of privacy. Other circuit courts have upheld similar GPS tracking.

A ruling is expected by June.