Today’s U.S. Supreme Court GPS Tracking Opinion

Today, the United States Supreme Court issued its opinion in United States v. Jones, Case No. 10-1259, otherwise known as the “GPS tracking” case.

The facts in Jones were quite simple:  Antoine Jones was suspected of being a drug dealer.  The government obtained a warrant to install a GPS device on his wife’s Jeep.  Two conditions though:  the GPS had to be installed in the District of Columbia within 10 days.  In fact, it was installed in Maryland on the eleventh day.  Ooops.

A lot of data was obtained during the four weeks that the GPS was on the Jeep, and it was used to indict Mr. Jones of conspiracy.  He was eventually convicted and sentenced to life imprisonment.

That life sentence was overturned by the Apellate Court.  The United States Supreme Court affirmed that ruling, holding that a person has a right to be free from unreasonable searches and that the installation of the GPS was a warrantless search in violation of the Fourth Amendment of the United States Constitution.

One thing that I found quite interesting is that the the Court seemed to place special reliance on a 1765 English trespass case, Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765).  This is strange, since Entick is (1) an English case (2) that pre-dates the U.S. Constitution (3) is almost 350 years old and (4) is a civil trespass action, not criminal.

Which is not to say that Entick is irrelevant; it clearly gives us a better understanding of what the Founding Fathers’ believed to be their property rights and by extension, what they meant by freedom from unreasonable searches.

So why is this interesting?  I think that if you were to study expectations of privacy at the founding of our nation, you would see that they were radically different from what they are now.  In some ways, they were more expansive, in other ways, less.  For example, it would be very unlikely that a Judge in 1800 would grant the government a warrant to to retrieve and read your personal diary.  It would be considered a terrible infringement on one’s own sovereignty.  Yet nowadays, we don’t expect any special privilege to keep the government from doing so.

Nor do we think it there is anything wrong when the police make you stop at a roadblock to see if you have been drinking, and then if they suspect that you have, they order blood to be drawn from your veins to be used against you in a criminal prosecution.  I suspect Thomas Jefferson would be aghast at something like that.

Then again, Jefferson didn’t have too much of a problem owning slaves.

In any event, I am curious to see whether the Court is moving in the direction of re-setting our expectations of privacy back towards what our forefathers expected in the 18th Century?  Or was this just a one-time flourish of legal scholarship?  Time will tell.

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