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!
Image: Ivaschenko Roman/Shutterstock.