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Court Mixed on Privacy, Surveillance

A case before the Supreme Court involves GPS, camera surveillance and cell phone wire taps

The question of privacy in the age of closed circuit television (CCTV) is part of a recent U.S. Supreme Court opinion. On Jan. 23, 2012 the court issued a unanimous decision in the case United States vs. Antoine Jones that favors Jones.

The facts of the case are that Jones—who operated a nightclub in Washington—was the target of a narcotics investigation in which police “employed various investigative techniques, including visual surveillance of the nightclub, installation of a camera focused on the front door of the club, and a pen register and wiretap covering Jones’ cellular phone.”

In order to track Jones’ travels, police attached a global positioning system (GPS) device to the vehicle he was driving. Police did obtain a warrant to attach the GPS device, but it was supposed to be attached within 10 days of the warrant being issued. Police attached the device 11 days after the warrant was obtained.

They used the GPS device to track Jones for 28 days, including to a dwelling where $850,000 and 97 kilograms of cocaine and one kilogram of cocaine base were seized. Jones was convicted of conspiracy to distribute five kilograms or more of cocaine and sentenced to life imprisonment. However, on appeal the D.C. Circuit Court ruled that the evidence obtained through the use of the GPS device is a warrantless search in violation of the Fourth Amendment, a ruling upheld by the Supreme Court.

Justice Antonin Scalia wrote the court’s opinion, which says police must obtain a search warrant before using a GPS device to track criminal suspects. However, the court made clear there are larger questions about how technology—including surveillance technology—is affecting privacy in regards to criminal investigations.

Nonetheless, while the court acknowledges those issues, it is mixed on what might be constitutional in those cases. The opinion states that, obtaining evidence “through electronic means”—even without trespassing onto a suspect’s person “houses, papers and effects”—might be “an unconstitutional invasion of privacy.” However, it also states that “traditional surveillance”—including “aerial assistance”—would be “constitutionally permissible.” Nonetheless, “the present case does not require us to answer that question,” Scalia wrote.

His opinion suggests the court knows those questions have to be addressed and it will hear such cases relatively soon.

So, should a person expect a reasonable amount of privacy in an age where CCTVs abound, and devices that can track movements are embedded into cell phones? Yes they should.

In addition, there are proper channels that will allow law enforcement to access those devices to track a suspect’s movements. Those channels are designed to protect citizens’ rights by limiting the use of electronic surveillance that can easily violate the right of privacy. Such channels and limitations are demanded by the Constitution, and the police were just reminded of that.