Could colonial sheriffs have smuggled a tiny constable into a carriage? No, and that's why we can't rely on their legal reasoning.
"The question is whether we're going forward to tomorrow," former Vice President Dan Quayle once said, "or whether we're going to go past to the back!"
Justice Antonin Scalia drove his DeLorean forward to the past Monday in an opinion holding that police use of computerized GPS technology to track a suspect's car without a warrant is unconstitutional -- when done under circumstances that the 18th-century British Court of Common Pleas would recognize as constituting "trespass to chattels."
Deciding a case that presents novel and pressing technological issues -- could the government, for example, construct a real-time Person of Interest-style database showing where everyone in the country is at every moment? -- the Court's majority, with Scalia playing the role of kindly Doc Brown, turned to Lord Camden's cogent opinion in Entick v. Carrington, 95 Eng. Rep. 807 (C. P. 1765): "[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour's close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour's ground, he must justify it by law."
Justice Scalia's opinion -- which was joined by Chief Justice John G. Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor -- focused like a laser on the least interesting or significant aspect of a fascinating case. Writing for five justices, he held that the government loses not because tracking people with a GPS is so intrusive that it should only be done with a warrant -- that issue is left undecided -- but because the police officers physically put something on the defendant's car. Justice Samuel Alito, whose concurrence was joined by Justices Ruth Bader Ginsburg, Stephen Breyer, and Elena Kagan, retorted: "the Court's reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car's operation)." The actual physical act of attaching a tiny transmitter is so minor that it would not, under today's law, be regarded as a trespass, Alito said.
Antoine Jones, you may recall, was suspected of moving major weight in the Washington, D.C., drug market. A joint FBI-DC Police task force got a ten-day warrant allowing them to put a GPS transponder on his (actually his wife's) car to track his movements, hoping their pattern would reveal the location of his stash house. Alas, the officers then waited eleven days -- and to make matters worse, affixed the transponder in Maryland, where the magistrate had no jurisdiction. So the warrant was no good.
The feds monitored the car's movements for 28 days; when the bust went down they found more than 200 pounds of cocaine, a kilo in crack, nearly a million in cash -- and also some really incriminating stuff. The phrase "dead to rights" comes to mind. At trial, however, Jones objected to the seized items as "fruit of the poisonous tree" -- in this case, the warrantless "search" of his whereabouts.
Faced with losing the case, the government argued that GPS tracking is not a "search" at all -- no warrant, no suspicion, no investigation needed. At oral argument, Chief Justice John Roberts asked Deputy Solicitor General Michael Dreeben whether it would be a search "if you put a GPS device on all of our cars" (meaning the nine members of the Court).
Dreeben said it would not. After that, it seemed to be mainly a question of how the government would lose, not whether. And this week, sure enough, the tally was Jones 9, Big Brother 0.
But Scalia's opinion for the Court tried to deal with global satellite and massive computer technology with "originalist" methods: what would the Founding Fathers have thought if a colonial-era sheriff had tracked a bad guy by hiding a constable in his carriage. Seriously, grandpa? Alito retorted. "This would have required either a gigantic coach, a very tiny constable, or both -- not to mention a constable with incredible fortitude and patience."
Alito pointed out that there are plenty of ways for law enforcement to use GPS technology to track us without touching a thing:
For example, suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased. Would the sending of a radio signal to activate this system constitute a trespass to chattels?... [C]ell phones and other wireless devices now permit wireless carriers to track and record the location of users -- and as of June 2011, it has been reported, there were more than 322 million wireless devices in use in the United States.
The Court's most recent search and seizure cases suggest that the test should be whether the defendant would have had a "reasonable expectation of privacy." That "expectation" isn't based on property law -- defendants have it, the Court has held, in a "public" place like a phone booth, but don't have it in "open fields" they own. We have, of course, no clue what Lord Camden would have thought of computerized law enforcement tools. Justice Alito would have applied the "reasonable expectation" standard to hold that "relatively short-term monitoring of a person's movements on public streets accords with expectations of privacy that our society has recognized as reasonable... In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark." If law enforcement needed that much surveillance, he noted, they could bestir themselves to get a warrant.
Alito pointed out that many of the protections evolved against misuse of other new technologies -- like wiretapping and electronic eavesdropping -- have been evolved by legislation, not the courts.
All nine of the Justices, I suspect, would be relieved if Congress would take on the tough questions posed by the combination of computer power and ubiquitous tracking devices.
That's a good reason for using a narrow ground of decision, as Justice Sonia Sotomayor pointed out in a concurrence, explaining why she joined Justice Scalia's opinion. Sotomayor noted that Americans today must furnish large amount of information to private entities like cellphone companies and internet service providers, and that the "expectation of privacy" line of cases doesn't address this problem. "Resolution of these difficult questions in this case is unnecessary, however, because the Government's physical intrusion on Jones' Jeep supplies a narrower basis for decision," she wrote.
Lawyers, by and large, aren't futurists; indeed, the structure of our discipline bears us ceaselessly back into the past. We sometimes feel self-hatred about that. "It is revolting to have no better reason for a rule of law than that so it was laid down in the time of Henry IV," Justice Oliver Wendell Holmes Jr. once wrote. "It is still more revolting if the grounds upon which it was laid down have vanished long since, and the rule simply persists from blind imitation of the past."
What would Justice Holmes have thought of "blind imitation of the past" as a source of brand-new rules for the future?
Let's ask him! Quick, Doc -- to the DeLorean!