Homeland Security and United States v. Jones, 565 U.S. (2012)

Introduction
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 the work whereas in the case of Jones all police had to do was push a button and sit back. This distinction was somewhat arbitrarily made because the Constitution does not say that it is okay to track so long as one has to physically follow but not okay to track if the technology is so good that it does not necessitate physically following. Yet, that was the argument Roberts made and so the ruling in Jones essentially overturned the ruling of US v. Knotts.
Even when Justice Scalia made the argument that the GPS tracking used against Jones constituted a trespass, the prosecution countered by saying that even if it was technically a trespass it was permitted by United States v. Karo, which showed that it “made no difference because the purpose of the Fourth Amendment is to protect privacy interests and meaningful interference, not to cover all technical trespasses” (United States v. Jones, 2012). However, the majority ruling did not agree with that interpretation of Karo and stated instead that the unwarranted use of a GPS tracker was a violation of the 4th Amendment (Liptak, 2012). As the defense reported at the time, the ruling was important because it put law enforcement “on notice that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance” (Liptak, 2012). In other words, if police wanted to use a beeper system to follow a car—or collect the GPS data from the vehicle’s GPS service—that would be fine; but attaching a GPS tracker without permission or warrant from the court would be a breach of the 4th Amendment. In other words, that is a line that in the age of digital surveillance and technological advancement, must not be crossed by law enforcement.
The Ruling
The ruling impacted the applicability of the 4th Amendment in a very narrow and specific way—with respect to the warrantless usage of GPS trackers. That is all. It overturned Karo and Knotts in the sense that both cases gave more leeway to law enforcement in terms of technical violations of the 4th Amendment. The ruling in Jones showed that the Supreme Court wanted to delineate between aggressive actions by law enforcement using technological innovations and the right of the public to still feel secure in its possessions. Intrusive behavior on the part of law enforcement was not protected; rather, the privacy of the individual was what the Court ruled in favor of.
This ruling is especially pertinent in the post-NSA scandal of the Snowden revelations, which revealed that the government agency was indeed spying on American citizens through their digital technology. It was an echo of the days of Operation Chaos when America’s intelligence community was caught spying on US citizens (Athan Theoharis, 2006). The ruling by the Court was a kind of anticipation of the Snowden leaks, and came at a time when the public was becoming upset over the Patriot Act reauthorization beginning in 2005 and again in 2009 (Epic, 2012). By putting this arbitrary curb on police authority to monitor and track people, the Supreme Court was essentially saying to the public as well as to law enforcement that there were limits to how far the state could step on the rights of people to privacy.
The Reality
Yet, the reality was different than the perception. The Supreme Court might have said that there were limits, but the ruling was largely toothless, as subsequent prosecutions of Jones showed. The prosecution was permitted to obtain GPS data from the service provider of Jones’ vehicle, which essentially helped them to make their case that he was trafficking drugs. The Court did not say that the use of GPS tracking was altogether a violation but only that the unwarranted usage of GPS tracking as in the case of Jones was a violation. Even though FBI Director Mueller would later say that the case hampered the FBI’s ability to engage in surveillance, this was largely just posturing before Congress.
The reality is that Homeland Security can engage in numerous different types of tracking and surveillance using methods like RFID chipping to track packages and whereabouts without violating the 4th Amendment. Homeland Security has a broad spectrum of tools to conduct surveillance and gain intelligence without having to worry about the effects that these methods might have on cases. The ruling of the Court in Jones was largely a pacification of the public—a message saying, “Look, see? We do care about your privacy rights!” The reality was that the government and law enforcement was going to continue to erode the rights of the public as fast as technology could allow it to do.
Regardless of that fact, the perception that the Jones ruling would have an impact on law enforcement took hold—even though all it really meant was that law enforcement could not physically put a GPS tracker on a car without a warrant. It did not mean law enforcement could not obtain GPS data from a service provider. If the service provider was willing to hand over that data, what difference did it make how the law enforcement agency obtained it?
Homeland Security Context
Within the context of Homeland Security, the ruling in the Jones case has very little effect. DHS has mobile surveillance capabilities, immersive imaging systems that provide high-resolution pictures with 360 degree coverage (DHS, 2020). DHS also has a centralized area video surveillance system (DHS, 2018). Neither one of these systems is impacted in the least by the ruling in Jones. The ruling in Jones can therefore be seen largely as a dog whistle—a way to call to the public and get the public to believe that their rights are being protected by the Supreme Court, all the while the Court looks the other way when it comes to mass surveillance of the public via video systems and mobile surveillance. The fact that Google can track everyone’s movements by way of the Android OS on mobile phones or other apps shows that the line between private and public has been lost, and the Supreme Court even mentioned this in its statement in the Jones ruling. In the future, the Court said, it might be a matter of redefining normal expectations of privacy.
What this means is that DHS has very little to worry about in terms of exercising the tools it has to perform its duty in protecting America’s borders and securing the domestic front. What people worry about in some cases is their data being taken or used for blackmail or their words being used against them if they are politically incorrect. People have good reason to fear being labeled a domestic terrorist today, considering the hyper-politicized climate of today. Politicians on the Left like Maxine Waters are rabid in their condemnation of Trump and his supporters.
However, the job of DHS is not to label conservatives as terrorists; so it is a moot point. The Jones ruling was simply a way to show the public that the 4th Amendment protections still existed; that the Patriot Act had not undone everything. Even though the revelations of Snowden would soon follow, by that point many Americans were willing to accept the Faustian bargain of handing over their data for the privilege of being able to use the Internet.
Conclusion
How did the ruling in United States v. Jones (2012) impact Homeland Security? Did it handcuff surveillance efforts, as Mueller said it did for the FBI? Or was it more of a dog whistle used to pacify a public that was already getting annoyed with the 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 ends—but research might be conducted that asks whether a better framework, such as virtue ethics might be implemented instead.
References
Athan Theoharis, Richard H. (2006). The Central Intelligence Agency: Security Under Scrutiny. Greenwood Publishing Group
DHS. (2018). Centralized area video surveillance. Retrieved from https://www.dhs.gov/publication/centralized-area-video-surveillance-system
DHS. (2020). Mobile surveillance capability. Retrieved from https://www.dhs.gov/taxonomy/term/3557/all/feed
Epic. (2012). Patriot Act extension. Retrieved from https://epic.org/privacy/terrorism/usapatriot/extension/
Johnson, C. (2012). FBI Still Struggling With Supreme Court's GPS Ruling. Retrieved from https://www.npr.org/2012/03/21/149011887/fbi-still-struggling-with-supreme-courts-gps-ruling
Schad, M. (1967). Police Liability for Invasion of Privacy. Clev.-Marshall L. Rev., 16, 428.
United States v. Jones. (2012). Retrieved from https://www.oyez.org/cases/2011/10-1259