The U.S. Supreme Court just announced its decision in U.S. v. Jones, ruling unanimously that the government must obtain a warrant before affixing a GPS tracking device to a suspect’s vehicle. While all the justices agreed that the Fourth Amendment required police to obtain a warrant they did not agree on the rationale. Five joined Justice Scalia’s majority opinion that the Fourth Amendment applied to private property such as a vehicle. Four agreed with Justice Alito that this warrantless search violated the defendant’s reasonable expectation of privacy. According to the article just posted by The Wall Street Journal–
Justice Alito warned that a property-based approach was too narrow to guard against the proliferating threats to personal privacy modern technology posed. Justice Scalia stressed, however, that the majority wasn’t repudiating the broader test articulated in 1967, but rather that it was unnecessary to reach it because installation of the tracker was sufficient by itself to trigger the Fourth Amendment.
This November the U.S. Supreme Court will hear oral arguments in United States v. Jones, “the most important Fourth Amendment case in a decade” according to New York Times reporter Adam Liptak. The issue is whether police must obtain a warrant to attach a GPS unit to criminal suspect’s vehicle and then track its movements for weeks. Last year the D.C. Circuit Court of Appeals ruled unanimously in Jones that such GPS tracking required a warrant. A split exists because the Seventh and Ninth Circuits have upheld the use of evidence obtained from GPS tracking. The NY Times article reports that many lower courts addressing this issue have cited George Orwell’s 1984, which I describe in the Introduction to my Internet Law Casebook as “describing a world in which governments control all information and omnipresent Big Brother monitors everyone through two-way electronic devices.” My Casebook mentions it because 1984–and Orwell’s similarly-dystopian Animal Farm–were two of the books Amazon.com deleted from its users Kindles after the holder of their copyright claimed Amazon.com was not licensed to sell the books.
George Orwell would be proud of his prescience.