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Supreme Court Hears Arguments In GPS Case

NEAL CONAN, host: In 2005, FBI agents in Washington, D.C., put a tracking device on a car registered to Antoine Jones and followed his movements with GPS. They suspected Jones of distributing narcotics, and the tracking device eventually led them to his stash. Afterwards, a federal appeals court threw out Jones' conviction because the FBI's use of the tracker, it said, violated his Fourth Amendment rights. Today, the Supreme Court heard arguments in that case.

We'd like to hear from you. How does new technology change the debate over privacy and security? Give us a call: 800-989-8255. Email us: talk@npr.org, click on TALK OF THE NATION.

David Savage covers the Supreme Court for the Los Angeles Times and the Chicago Tribune, and he joins us from his office here in Washington. David, always nice to have you on the program.


CONAN: And this case, the Fourth Amendment protects against unreasonable search and seizure. The government argued it did not need a warrant to put a tracking device on this man's car.

SAVAGE: Yes, that's right, sort of citing the sort of long established law that the Fourth Amendment protects privacy, where you have a reason to be private. That is, I can't come into your house. And if you're talking on the phone, although not a phone call like this, but if you're talking on a normal phone call, your assumption is that no one is listening.

But when you walk down the street or you get in your car and drive around town, you're not - you're in public and government could put an agent behind you and then follow you. And so the argument in this case is they said, what's the big deal? Where - you have no right to privacy when your car moves on the highway. Therefore, there's no Fourth Amendment concern about tracking a car for a month with a GPS device.

CONAN: And the other side argues that you're getting a whole different quality and quantity of information from a GPS that you would never get from an agent.

SAVAGE: Yes. And it wasn't just the other side, Neal. It was John Roberts making that argument and Sam Alito. The interesting thing about this argument was how much Roberts and Alito and Stephen Breyer and Ruth Ginsberg, both liberal and conservative justices, said, wait a minute. You know, if we go along with that argument, the government can use a monitoring device to monitor everyone going everywhere. And with computers, you could keep databases on huge numbers of persons. You couldn't literally track - you know, FBI wouldn't have thousands of people being tracked every day or hundreds of thousands of people. But that's the new world. Maybe that's how the technology could be used.

John Roberts, very early in the argument, said, well, what if you wanted to put a GPS monitor on our cars and monitor us for a month? Is that OK? And Michael Dreeben, the attorney for the government, said, you mean the justices of this court? And he said, yes, that's who I mean. And Dreeben said, well, under your cases, that would be permissible. And so the whole tenor of the argument was that the justices do not like the idea of a totally open-ended power to monitor and track people.

CONAN: And, of course, you're saying they could put devices and track us all. Most of us carry devices in our pockets that can be used to track us.

SAVAGE: Yes, that's right. One of the sub issues in this case was that they attached this little GPS to the fellow's jeep. And it's possible they may end up with a narrow ruling that says the government went too far when they attached the GPS. But we're not going to decide the bigger question of, as you said, well, what if they use your own cell phone technology to track you? I think a number of them want to reach that question. I will say, by the end of the hour, it was unclear what type of limiting principle they're going to adopt.

So, on the other hand, they don't want to say if the government has some reason to think that a few people are involved in wanting to, let's say, bomb the Metro or bomb the Washington Monument - and we don't know for sure, but we're suspicious, and we want to track some of these people - the Supreme Court doesn't want to say you can't track somebody until you have proof they're involved in a crime. So I know they don't want to go down that road too far the other way.

CONAN: This has been described as maybe the most important Fourth Amendment case in, well, many, many years.

SAVAGE: Yes. And, of course, like a lot of this, it sort of depends on - we will know when it's over with of what they decide. I think the - I will say, one possibility that came up in the middle of the argument that was not picked up on is some sort of reasonable suspicion standard. Elena Kagan said, well, you know, if you go to London, there are all these cameras that would track you everywhere you are in the public, and that does - that seems to be standard. Somebody else said, but the GPS is different because you're picking out an individual and tracking him.

And one possible standard, we'll just say, the government can do that only if they have some reason to believe that - supposed it's you or me, supposed it's Neal Conan, we have some reason to believe that Neal's involved in some way, and we don't know for sure, and so let's monitor. So that standard would say, you can't do it for everybody. You can't do it routinely. You can only do it when they have some real reason to believe this person is involved in whatever it is, a drug conspiracy or a terrorism plot.

CONAN: Well, if they have reason to believe, can't they go to a judge and get a warrant?

SAVAGE: That's a good question, Neal. But usually, the answer would be no. If you have probable cause, if you have reason to know that - somebody says, I can testify this guy has been involved in selling drugs or whatever, then you've got probable cause. But what if you just heard a tip that five or 10 people who have come to Washington and we think they might be up to something suspicious, we just don't know what it is, you wouldn't have probable cause to believe they're committing a crime. You just have a suspicion.

CONAN: We want to hear from callers too. How does new technology change the debate on privacy and security? 800-989-8255. Email us: talk@npr.org. Let's start with - this is Paul. Paul, with us from Panama City.

PAUL: Hi, Mr. Conan. It's good to speak to you again.

CONAN: OK. Good to have you back. Go ahead.

PAUL: The technology changing the debate is - it won't do so quite so much if we remember what the Fourth Amendment is about. See, the current government - the government's current case is a bit of political sophistry based on the beliefs that the Fourth Amendment is about privacy. It's not about privacy. If you look at original intent, you see that the Fourth Amendment, the First, the Second, the Fifth, almost all of them, were built into the Constitution to prevent government intimidation of citizens.

When you look at this case, from that viewpoint, government intimidation versus no government intimidation, it's very clear what the Founding Fathers would have said about this case and allowing ourselves to get down the road of privacy versus non-privacy, clouds the issue.

CONAN: David Savage, does that come up in today's argument?

SAVAGE: Well, yes. Justice Scalia made a version of that argument. He said he didn't like this sort of reasonable expectation of privacy doctrine that came in the late '60s. Let me say that the original view, the one the Scalia was endorsing, was that the Fourth Amendment was about things like protecting your home, your papers, something like that. In other words, protecting a place. The police couldn't go into your house.

In this famous case in the late '60s where a bookie is on a street in Los Angeles making phone calls, and the court overturned its decisions and said, that kind of wiretapping is unconstitutional, is a Fourth Amendment violation, because the Fourth Amendment protects people, not places. And when you're talking on a phone in a phone booth, you expect it's private. So ever since then, they've had this privacy view. To go back the other way would be to say the Fourth Amendment protects you against the government coming in your house, maybe rifling it around the inside of your car...

CONAN: Well, wasn't there a case a few years ago, where they were using thermo imaging to look inside people's houses? And the Supreme Court said, no, you can't do that. That's Fourth Amendment violation.

SAVAGE: Yes. That was a Scalia opinion. And that case, Neal, it's sort of dependent on what you thought was - this was a situation where they had a thermal imager in the house growing marijuana. It was putting out steam. Justice Scalia said, that's really looking inside of somebody's house and, therefore, it violates the Fourth Amendment. Justice Stevens, who's one of the more liberal, says, no, it isn't. It's just recording the heat waves that come out of your house.

It's like smells wafting out of the kitchen. And he said it wasn't a Fourth Amendment violation. But yes, you're right. The question was if it goes into the house and sort of spies on you into the house, then they said you need a search warrant.

CONAN: Paul, thanks very much for the call. Appreciate it. Let's see if we could go next to - this is Lisa. Lisa, with us from Pensacola.

LISA: Hi. I was just listening to your caller right before I came on. He had a very good point, but it also raises a question. If - I guess if you're doing something wrong in the privacy of your own home, it's not really technically wrong until you get caught. Is that really what we're looking at? Is that the issue we're looking at?

CONAN: Well, it's still wrong, but they can't prosecute you because they will have no evidence.

LISA: Well, I mean that - they do have evidence. I mean, he's growing marijuana in his house. So, I mean, how much more do you need?

CONAN: Well, it was just that particular method of discovering that fact was unconstitutional. His rights were violated.

LISA: That's right. That absolutely should be changed. I have no qualms with someone - honestly, I really - I have nothing to hide. My life is an open book. I don't understand people who live - I understand people's personalities are very private. There's some things, of course, that I would like to keep to myself. But if - look, if it helps a case, a criminal case, a situation involving my family, a social situation that needs to be solved, all of that information should be opened up to whoever, you know, whatever authorities need to know it.

I really don't believe in hiding things. I'm a health care professional. I even have problems with HIPAA. I have a few - a real few problems with HIPAA simply because I believe it would put ourselves in a situation where we'd become so private. That in the event that something were to happen to me - let's say, my husband is not a health care professional but I am - no one would have access to my medical record except for him if something's not spelled out, you know, clearly on all of my medical records. I have get - written in very large letters. No restrictions on who has access on my medical records. I have nothing to hide.

Now, my friends, my family, my co-workers who are physicians, other physical therapist and other health care professionals can't come in and help make a decision for me if I were in a life or death situation vs. leaving it up to my husband and my doctor. Do you understand where I'm going with this?

CONAN: I do, Lisa. Thanks very much for the call. Appreciate it.

LISA: Mm-hmm.

CONAN: Thanks. Here's an email that we have from Carrie(ph) in New York. Let's also consider how this can protect us. I think what if I was kidnapped and went missing? So there is a view on that side.

And this is from Hank in Fernandina Beach in Florida. If you think why is it that the Constitution would have agreed it was OK for the government to attach a device to your horse to let the government know where you were at all times, then you have no concept of their ideas on government intrusion.


CONAN: I'm not sure how that computes, you know. What was the intent of the 4th Amendment at issue today in the oral argument?

SAVAGE: Well, there was - your previous caller was talking about her view of privacy being well different from other people's views. Sam Alito brought up a really interesting point about is that, you know, that views on privacy are so much influx that he said, I don't know what it's going to be like 20 years from now. You know, it seems to be case with Facebook or whatever. It may - he said that it'll maybe the case that most people have, you know, 500 friends on Facebook. And at the Facebook, they track each other every moment of the day, and they know everything about their conversations that privacy - the whole notion of privacy is constantly changing.

And I suppose that sort of argues for - to some degree, Scalia like view is that the 4th Amendment can protect certain private places or private situations, you know. And the classic is we don't want government agents to come into your house, an apartment or whatever, unless they have real reason, a search warrant, a real reason to believe something - there's some crime going on. But on a public street or in a public space, maybe there's no such privacy concern at all.

CONAN: And the person may, in fact, be tweeting it or broadcasting it on Foursquare...

SAVAGE: That's right.

CONAN: So you never know. David Savage, thanks very much.

SAVAGE: Thank you, Neal.

CONAN: David Savage, the Supreme Court reporter for the Los Angeles Time and the Chicago Tribune. He joined us today from his office here in Washington. You're listening to TALK OF THE NATION from NPR News. Transcript provided by NPR, Copyright NPR.