Warrantless v. Warrant for GPS Surveillance Should the Government Have the Right for Warrantless Surveillance

Warrantless Use of GPS

The Problem of Warrantless GPS Surveillance: Ethical Considerations Regarding Privacy and the Fourth Amendment

The Fourth Amendment protects citizens from unlawful search and seizure by granting them the right "to be secure in their persons, houses, papers, and effects" (U.S. Const. Amend IV). As the case of Burdeau v. McDowell (1921) showed, this Amendment has been interpreted as a protection of individuals from government intrusion. However, with the advent of global positioning systems (GPS), the question of individual security in the face of an encroaching and growingly intrusive government has become more and more of an issue. Physical searches have been in some cases by non-physical monitoring. GPS devices have been used by federal agencies to track suspects; they have been used as a means of gaining evidence of criminal activity; they have played a major role in FBI surveillance; their warrantless usage muddies ethical boundaries, violates privacy, and has dire constitutional implications. The question of their warrantless usage has been brought before the courts with greater frequency in recent years. United States v. Katzin is one more of the latest in a litany of instances in which the government has attempted to reach beyond the clear boundaries delineated by the Fourth Amendment and the interpretation of that Amendment by the Supreme Court in an electronic age that rivals with its all-seeing abilities the watchful gaze of Orwell's Big Brother. The dangers of that watchful gaze to civil liberties are apparent and real, and have been identified by the courts. This paper will show why the government does not have the right to warrantless surveillance via GPS, using cases, studies, data, and the Constitution.

Defining "Privacy" and "Search" in the Electronic Age

A number of cases highlight the major problem of warrantless GPS surveillance. From a definition of the phrase "right to privacy" and the usage of technology by the government to monitor illegal activity without a warrant, to a judgment on the use of GPS surveillance, to the question of the scope of "reasonableness" in searching without a warrant -- the parameters of protection offered by the Fourth Amendment have continually been tested by government agencies attempting to muddy the boundaries of "search and seizure" with the assistance of technology (like GPS) and technicalities like the amount of time an individual is monitored with a GPS device.

Katz v. United States (1967) examined the meaning of "right to privacy" and defined non-physical intrusion (such as listening devices) as falling within the scope of "search," from which individuals are protected by their Fourth Amendment rights. Charles Katz made calls on a pay phone -- calls upon which the FBI electronically eavesdropped. The Supreme Court stated that the government had violated Katz's right to privacy by eavesdropping on his call, which "constituted a 'search and seizure' within the meaning of the Fourth Amendment'" (White, 2004, p. 6). The case clearly expressed that the government did not have the right to present evidence against Katz retrieved with the usage of equipment which trespassed on his privacy without warrant. The government attempted to argue that because it was non-physical monitoring and not a physical search, the defendant's rights were not violated. The Appeals Court upheld the government's arguments. The Supreme Court did not. The definition of "search" was re-interpreted in the light of the electronic age to include the usage of electronic, non-physical monitoring devices.

But this case was just the first step in the problem of electronic warrantless surveillance. Other issues remained -- such as the question of using satellites and tracking devices without warrant to observe movement of suspects. This issue was addressed in case of United States v. Jones (2012).

The FBI working with Metropolitan Police attached a GPS device to the vehicle of Antoine Jones in 2004 in order to track his movements, which were suspected to be linked to narcotics trafficking. The GPS device was used without a warrant for four weeks, 24 hours a day. Jones was arrested in 2005, convicted of cocaine trafficking in 2008, and sentenced to life in prison.

In 2010, he successfully appealed the decision, arguing that the government had violated his Fourth Amendment rights by using evidence in his case retrieved through the warrantless usage of GPS device tracking. The Supreme Court then issued a certiorari in an attempt to put to rest certain issues that the case had raised. The attempt was seen as successful by some, unsuccessful by still others. The problem lay in the fact that previous court cases existed which appeared to validate through precedent the claims of both sides in the argument. The Supreme Court admitted that the issue and meaning and value and importance of privacy is changing as technology develops and makes everything (to a degree) obtainable with less labor required to obtain it than ever before. Questions such as what determines the appropriateness of a search (the amount of effort put into it?), or what prohibits the government from tracking the movements of a vehicle on an open road (the case of Knotts certainly admitted that this was permissible), seemed to raise more problems than the Court was prepared or able to answer.

Problems in U.S. v. Jones

The government argued that the Fourth Amendment did not protect vehicular movements on public roads -- a point already established in the case of United States v. Knotts. In that instance, an electronic beeper had been used to assist officers in following a vehicle under surveillance. Justice Roberts reacted to this argument with disgust, observing that the beeper still took "work" -- something GPS monitoring did not. The issue seemed, at this point, to be not one of precedent (clearly established in Knotts) but rather one of social distaste of the ease with which governmental agencies can keep track of anyone, anywhere at anytime. While this point is certainly understandable from a social perspective regarding a fear of totalitarianism, it did not serve as the basis for the Court's certiorari, as it was only superficial to the deeper problem inherent in Jones' arrest and conviction.

Therefore, Justice Scalia returned the discussion to the primary issue, pinpointing the more pressing question of Constitutionality: Did the warrantless usage of GPS device violate the individual's protection from search and seizure? Scalia saw it is a blatant trespass. The government admitted as much, but cited the case of United States v. Karo and asserted that it "made no difference because the purpose of the Fourth Amendment is to protect privacy interests and meaningful interference [with possessions], not to cover all technical trespasses" (U.S. v. Jones, 2011, Oral Argument Transcript, p. 8). Scalia insisted upon his point and the Court ruled that the installation of a GPS device constituted a search. However, because the Court refused to state whether the search was "unreasonable" or demanded a warrant, the case was muddied still further. All that was established was the fact that the usage of a GPS device did constitute a search -- a point which previous courts had not found it necessary to make (if one likens the GPS device to the beeper detector used on Knotts). The difference, here, was that with newer and better technology at hand, the notion that the government could so easily monitor for such an extended period of time the movements of a citizen's vehicle using a GPS device was a search. On the brink of clarifying whether the search was "reasonable" and therefore warranted, the Court pulled back and left that question open.

Long-Term vs. Short-Term

Justice Scalia cited the case of Katz, which saw the use of electronic equipment as a trespass. Justice Alito disagreed with Scalia that the issue of trespass was the condemning point. He viewed the meaning of "search" as originally used in the Fourth Amendment as having nothing to do with the usage of GPS-like devices. Instead, Alito saw the main argument against the government as stemming from the fact that the monitoring took place for nearly a month straight. It was the duration of the monitoring that was at the root of the violation of the individual's Constitutional rights.

Alito's comments added fuel to the fire: Apparently, monitoring with a GPS device was okay (by him) just so long as it was not used in perpetuity. After all, this was the electronic age, and individuals ought to get used to the idea that the government had the ability to track them. Notions of privacy and publicity were fading in the digital age. A brief monitoring of an individual's actions could be expected. A long-term monitoring amounted to an invasion of privacy. Where to draw the line between long-term and short-term, Alito seemed to be asking -- as though this were the issue -- not the usage of GPS systems (as Scalia saw it)?

That issue would be raised in the case of United States v. Katzin, still undergoing appeals today. Harry Katzin was tracked by the FBI with a GPS device only for a short amount of term (similar to the beeper-usage in Katz). Katzin was then arrested, charged, and convicted. In the appeals, the government argued the GPS device did not require a warrant because it represented "only a minimal intrusion on a vehicle…no part of the vehicle is penetrated…Installation takes a matter of moments, and is much less intrusive than the typical stop and frisk of a person" (Gosztola, 2013). In this case, yet to be decided, the main issue of warrantless GPS surveillance can be seen -- and so can the fact that the government attempts to justify its usage in any way possible. From arguing for the "innocence" of GPS tracking (it's less invasive than "frisking") to arguing that it is not unreasonable to use it in cases such as that involving Katzin (who was suspected of robbery), the government tries to justify its gradual but steady erosion of all sense of privacy so that a defense of privacy against "search and seizure" no longer seems relevant. This is the major problem. As Bruce Moyer (2012) notes,

Prolonged monitoring is much more intrusive of privacy, because it creates an extensive log of a person's behavior, the circuit court said. This collecting of increasing and massive amounts of data about our lives -- and the Orwellian portents of future technologies yet to be invented -- may be the driver that causes the Supreme Court to pause and place limits on police surveillance using potentially intrusive technology.

Yet even Moyer's argument must take a back seat to the fact that real issue is not one of re-interpreting the Constitution or properly understanding terms. The real issue which is not being addressed by the courts is the fact that the government is complicit in the erosion of all sense of the Fourth Amendment. Not only does the government violate it -- it attempts to destroy any and all comprehension of it in the American consciousness. It does it little by little, using devices like GPS tracking and the all too public spectacle of private lives flashed all over screens across America to subdue citizens' concept of a private life. If everything is public, why worry about protecting one's privacy? If the government allows private persons to be followed and harassed by the paparazzi, why should anyone object when the government follows and harasses its citizens with something as harmless as a GPS device? Here is the main ethical consideration that one must eventually come to in a serious discussion of warrantless GPA tracking.

The Better Argument: What Studies and Data Show

Both sides appear to be avoiding the overwhelming reality of the situation and getting mired in legalese. The electronic age is here for better or for worse -- but that should have no bearing on the issue of rights granted by the Constitution. Either side attempts to view the Fourth Amendment in the light of new definitions of "search," "privacy," "intrusiveness" or "reasonableness" -- but doing so only exacerbates the issue. The problem is not one of seeing the Constitution in the right light. The problem is one of enforcing the Constitution.

Studies and data show that the U.S. government is embarking on a new era of totalitarian control using legislative means (Patriot Act, NDAA or FISA, for example) to subvert Constitutional Amendments, technological means (GPS, satellites, drones, etc.) to gather information on suspects, and disasters (such as 9/11, the Boston Bombings) to enact martial law and show forth a new face of policing.

Paul Joseph (2007) shows in Are Americans becoming More Peaceful? that "cultural militarism and the degree to which patriotism, support for military values and for a president during a time of war, and more narrow concepts of what it means to be an American work against the tendency of Americans to become more peaceful" (p. 185). The military-industrial-congressional complex has institutionalized Fascism in America. As Howard Zinn (2007) observes, "The United States has not been invaded for almost 200 years, not since the year 1812, but it has invaded other countries, again and again" (p. 24). The Fascist tendencies of the American government have generated an aura of invasiveness that becomes more and more acceptable in every sphere of life as time goes on -- from the social to the political. There is no element of life that is deemed sacred -- no aspect of life that is not free from such intrusion. One must reveal all things to the government, from one's earned income to one's choice of education.

Today's world is one in which Orwell's expressions are commonplace: terms like "newspeak," "blackwhite," and "thoughtcrime" are heard and felt everywhere by persons who have not yet given up consciousness to the encroaching totalitarian regime. Warrantless GPS tracking is simply one more aspect of this encroaching regime. Like all invasions of privacy, it assumes a control over an individual that it has no right to assert -- at least, not according to the Constitution. As Tom Woods (2008) states, the government's "forty-year record of abuse when its intelligence-gathering power was unchecked does not inspire confidence" (p. 181). In fact, one may cite all the court cases one likes (and one often does) -- but it does not change the reality that there is no precedent set by the U.S. government in which its continuous press for more and more control over civilian lives is ever "relaxed."

What the Constitution Says

The Constitution grants no powers to the federal government assume total control over an individual. On the contrary, the Constitution is set up to limit government's control over individuals -- to protect individuals and States from a tyrannical system of centralized power. As Tom Woods notes in Who Killed the Constitution?, the country is in dire straits when it comes to enforcing the laws that were put in place to protect citizens from the sort of tyranny the Founding Fathers fought. Woods (2008) writes that "in the name of fighting terrorism" anything goes -- just as in Orwell's 1984, anything goes when one is engaged in combating the Enemy (p. 184).