Homeland Security is tasked with the responsibility of safeguarding the US from threats, both foreign and domestic. In the age of technological revolution unseen and unrivaled in any previous era of human history, digital surveillance is both more commonly accepted and viewed suspiciously by people who use cell phones, the Internet, social media, or even vehicles where GPS tracking systems are built-in. Many people allow Google, a public company, to monitor their movements and track where they have been, while others turn off Google tracking and use private networks because they want to maintain their privacy in the age in of digital technological intrusion and mass surveillance. The question that the Supreme Court raised but did not answer directly in United States v. Jones, 565 U.S. (2012) was what constituted a reasonable expectation of privacy in the digitalized world. Did using a GPS tracking device without a warrant constitute a violation of the 4th Amendment? The Supreme ruled in a 5-4 decision that it did, and this served as a landmark ruling in terms of how far law enforcement can go to track suspects. FBI Director Robert Mueller went so far as to testify before Congress that the Jones ruling had placed a significant limit on the FBI’s ability to conduct surveillance (Johnson, 2012). Yet in the case of Jones, the government tried him again, this time using the GPS data from the car’s built-in system. The case resulted in a mistrial and Jones, aware that another trial would commence, agreed to a plea deal. Thus, what initially seemed a victory for 4th Amendment rights advocates soon showed itself as little more than a technical victory that could easily be gotten around because of built-in digital communication systems that law enforcement can access for surveillance purposes. For Homeland Security, the Jones ruling may seem like a limitation but the reality is that DHS has multiple tools available to it that can be used to assist in the tracking of suspects. This paper will describe the background of 4th Amendment case law and the case of United States v. Jones, 565 U.S. (2012), explain the ruling of the Supreme Court, and discuss it within the wider context of the responsibilities and capabilities of Homeland Security to engage in surveillance work within the confines of the Jones ruling.
United States v. Jones, 565 U.S.
The 4th Amendment has always been a thorny issue for law enforcement. The ruling of Harris v. United States (1947) allowed law enforcement to conduct searches regardless of the reason for the arrest of the person; however, that allowance was later limited by the ruling in Chimel v. California (1969), which confined law enforcement’s right to search to within the context of securing the premises of weapons that the detained person might use against law enforcement. To search the premises for evidence to support the case of wrongdoing would still require a warrant. Thus, even if a murder was committed in a home, police would still need a warrant to search it.
Before those cases, however, came the Exclusionary Rule, which was implemented in order to stop unlawful searches and seizures. It hailed from so-called “fruit of the poisonous tree” doctrine that was set down in the ruling from Weeks v. United States (1914) as well as in latter 1920 case of Silverthorne Lumber Co. v. United States. Exceptions to this rule came about as law enforcement put forward situations where it was in the public’s best interest to conduct searches without warrant in certain circumstances. The ruling in Arizona v. Gant (2009) gave validation to the concept of search incident to arrest as put forward by Chimel v. California decades earlier. Yet the US Supreme Court ruled definitively in favor of the 4th Amendment right to privacy in Mincey v. Arizona (1978), in which the presumption that police have the supplied authority to conduct a search in the event of a murder was put to the test and ruled against by the Court. Indeed, it has been shown that police are even civilly liable if they conduct a warrantless search (Schad, 1967).
The Fourth Amendment is clear in terms of what right to privacy the people enjoy: it is “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized” (U.S. Const. amend. IV). Other cases have confirmed this right in their rulings, such as Wilson v. Arkansas (1995), Miller v. United States (1958) and Sabbath v. United States (1968). Yet 9/11 changed much in terms of the way the public thinks about the trade-off between privacy and security. The ruling in the case of Hudson v. Michigan (2008) showed that notice does not always have to be given by police before they conduct a search. The Electronic Privacy Control Act of 1986, updated post-9/11, has further given room to federal agencies to conducted searches of digital equipment, which has weighed on the minds of courts as they attempt to discern what the proper approach to warrantless searches is.
In the case of United States v. Jones, the issue focused specifically on the use of a tracking device. The prosecution argued that the ruling in United States v. Knotts had permitted the use of a beeper tracking device, but Chief Justice Roberts stated that the case was incomparable because police still had to follow the car and put in…extensions of the Patriot Act? The evidence suggests that Homeland Security was not impacted very significantly by the Jones ruling, for the Jones ruling addressed a very specific form of tracking—warrantless use of GPS tracking—whereas Homeland Security has numerous other tools at its disposal. With cameras virtually everywhere in urban areas today, it makes relying on GPS tracking systems almost immaterial. It is even more insignificant considering that law enforcement can simply call upon the GPS service provider for GPS data and that this will stand up in the court of law.
Significance of the Findings
The significance of the findings is that when it comes to the 4th Amendment, many Americans are willing to accept a ruling like that in the Jones case even while the NSA revelations by Snowden show a much worse violation of their rights to privacy. The American public has seemed to have willingly accepted the blurring of the line between public and private life, thanks to social media, which has made people want to spread their private lives all over the Internet. The Supreme Court in the Jones case anticipated as much and wondered whether there will come a time in the not-too-distant future in which there will be a need to redefine privacy.
The findings of this paper show that the Jones ruling overturned the Knotts and the Karo cases in terms of law enforcement being able to technically violate the 4th Amendment. However, the case overall does very little in terms of stunting the power of law enforcement to engage in surveillance—regardless of Mueller’s testimony. At the end of the day, law enforcement is going to continue engaging in mass surveillance as it has done for decades.
Questions for Future Research
Future research should examine the extent to which ethics plays a part in the surveillance methods of Homeland Security. For the intelligence community, ethics have not always been a primary framework. Instead, the role of intelligence and security apparatus has been to perpetuate a type of cold war mentality in which there are good guys and bad buys and the good guys must use whatever means available to protect themselves from the evil doers. Indeed, this type of language was used by the Bush Administration after 9/11 and it has continued to be used by every administration since, indicating that a simplistic worldview is being used to further advance a conception that whatever works is justified.
Is surveillance really necessary, however? Just because the technology is there, does it mean it should be used? What ethical framework should be implemented to guide the work of the intelligence and security apparatus in the federal government? Currently it appears that the framework is one of Ethical Egoism, in which the means are justified by the…
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