On January 23 the U.S. Supreme Court ruled unanimously that law enforcement authorities do not generally have a right to affix a GPS tracking device to a suspect’s car without first obtaining a valid warrant. Of the many things that can be said about the case, which has been called the most important Fourth Amendment test in a decade, perhaps the most sobering in the long run will be this: the decision is based on technology assumptions that are rapidly becoming irrelevant.

The case, formally known as United States v. Jones, has its roots in the technologically distant past of 2005, when smart phones, tablets, mobile apps, social networking and license plate cameras had not yet become ubiquitous—when it was still possible to make a trip to the grocery store without leaving a megabits-long trail of digital footprints.

The question before the Court turned in significant part on the physical trespass involved in placing a GPS tracker on a suspect’s car. Nowhere is this clearer than in the majority opinion, delivered by Justice Antonin Scalia, explaining why the Court ruled against the government (pdf):

“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

However, the majority opinion stops well short of addressing the most pressing privacy issues that accompany today’s location tracking technologies. First, there are many more ways today to perform surveillance without physically trespassing on private property, a point explicitly recognized by Justice Samuel Alito in a concurrence joined by three other justices. And, as Justice Sonia Sotomayor wrote in another concurring opinion (pdf), “the Fourth Amendment is not concerned only with trespassory intrusions on property.”

Second, the assumption that tracking a person’s location requires advance planning and action is fast becoming outdated. Increasingly, and likely irreversibly, to be engaged in the world means leaving detailed digital records of almost everything we do.

Mobile phone service providers log the list of cell sites to which our cell phones connect throughout the day. Mobile apps, more than half a billion of which were downloaded in the U.S. during the last week of December alone, gather data on the usage patterns of our wireless devices. In addition, mobile apps often track device location to the accuracy of a specific residence or office building, undermining the oft-cited claim that the data gathered is not “personal.” Much of this data is collected and then sold with our consent, in accordance with privacy policies that few of us read before accepting, to a complex ecosystem of mobile application providers and advertisers. License plate cameras record our automobile trips. When we walk into a store, restaurant, office building, or sit in a taxi, images of us are recorded and date-stamped.

http://liarcatchers.com/electronic_surveillance.html

In the past it would have been impractical to archive all of this information. Not anymore. Retail hard drive costs are over one million times cheaper today than in the mid-1980’s, and currently stand at roughly 5 cents per gigabyte. About $50 worth of storage can hold the information identifying the location of each of one million people to 4.5-meter accuracy at five-minute intervals, 24 hours a day for a full year. Data from video surveillance cameras is more voluminous, but storage cost trends are making it easier to archive that information as well.
For all of us, and not only for criminal suspects, the days when being tracked is the exception rather than the rule are drawing to a close. To the extent that our location on January 10, 2014—or, for that matter, on January 10, 2012—remains private, it is not because the records to remove that privacy do not exist, but only because no one cares sufficiently to access them. Inevitably and inexorably, we are building an infrastructure that enables location surveillance decisions to be made retroactively, reducing the need to determine in advance who should be surveilled.

In the future, therefore, the issue of before-the-fact location-tracking warrants will be largely irrelevant. All of the necessary data will be collected automatically. The important privacy questions will instead concern the protections that apply to that data: Who can see it? And under what circumstances?

The government certainly needs the ability to access archived information about the movements of a person credibly believed to be planning, for example, a terrorist attack. But what about juveniles suspected of petty crimes? What types of location data should be available to parents engaged in a child custody battle? Or former business partners embroiled in a legal dispute?

The Supreme Court has not yet addressed these questions. But, inevitably, it will. And the answers, far more than the ruling in United States v. Jones, will help define the meaning of privacy in 21st-century America.

The Supreme Court’s unanimous ruling on Jan. 23 that said law enforcement has to obtain warrants before using GPS tracking devices on suspects’ vehicles, could show the court is ready to address the Constitutional implications of other advancing surveillance technology, said privacy groups.

The Supreme Court ruled on Jan. 23 that the police’s placement of a GPS tracking device on a suspected drug dealer’s car without a court warrant violated Fourth Amendment protections against unlawful searches. The court’s ruling came in United States v. Jones in which the District of Columbia police attached a GPS device to a drug-dealer suspect Antoine Jones’ Jeep without his knowledge. Police used the device to track the position of Jones’ vehicle for a month in 2005 without a search warrant. Jones was subsequently charged with involvement in a drug conspiracy on the basis of evidence obtained by the device.

The American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation (EFF) said in statements following the ruling that the decision could signal the court is prepared to address the Constitutionality of other advancing surveillance technologies.

“While this case turned on the fact that the government physically placed a GPS device on the defendant’s car, the implications are much broader,” and ACLU Legal Director Steven Shapiro said in a Jan. 23 statement. “A majority of the Court acknowledged that advancing technology, like cell phone tracking, gives the government unprecedented ability to collect, store and analyze an enormous amount of information about our private lives. Today’s decision suggests that the court is prepared to address that problem. Congress needs to address the problem as well,” he said.

“EFF was particularly gratified to see Justice Sotomayor, in concurrence, raising concerns about the failure of the Fourth Amendment caselaw to keep up with the realities of today’s digital technologies,” said EFF Senior Staff Attorney Marcia Hofmann on the organization’s Web Blog.

http://liarcatchers.com/electronic_surveillance.html

“People disclose the phone numbers that they dial or text to their cellular providers, the URLS that they visit and the e-mail addresses with which they correspond to their Internet service providers, and the books, groceries and medications they purchase to online retailers…,” said Sotomayor in her opinion. “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”