Habeas Data_Privacy vs. The Rise of Surveillance Tech

by Cyrus Farivar

  The DC Circuit, in 2010, found that this was the right time to examine that question. The court concluded that just because Jones’ car was exposed to the public for a series of discrete moments doesn’t mean that the cumulative location information was exposed in the same way.

  “Two considerations persuade us the information the police discovered in this case—the totality of Jones’s movements over the course of a month—was not exposed to the public,” the judges wrote. “First, unlike one’s movements during a single journey, the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one’s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more—sometimes a great deal more—than does the sum of its parts.”

  On appeal at any federal circuit court, three judges are randomly selected from the full panel of sitting appellate judges. (The DC Circuit has 11 judges.) In the case of Jones, the three judges selected were Circuit Judge David Tatel, Circuit Judge Thomas Griffith, and Circuit Judge Douglas Ginsburg.

  Years later, Leckar called this particular grouping of judges a “dream panel,” comprised of a Democrat (Tatel), a “principled conservative” (Griffith), and a libertarian who was once considered for the Supreme Court (Ginsburg). The latter judge also had the distinction of helping create an early computerized dating service (Operation Match) in the 1960s. These judges ascribed to, and gave a full-throated endorsement of, the notion of the mosaic theory. This idea stipulates that a long-term historic collection of data points can establish a definitive pattern of behavior whose value exceeds the sum of its parts.

  “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble,” the judges wrote.

  These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.

  The government lost at the DC Circuit.

  * * *

  If a losing side wishes to appeal, it can take a few half measures before the cert petition to the Supreme Court. An appellant can ask the circuit court to simply reconsider (this often doesn’t work), or seek an en banc review of the case, where the case is heard before all the appellate judges that sit on that court. The court itself can decide whether to grant either of those petitions—unlike appeals, they are not automatic.

  So that’s exactly what the DOJ did. In its en banc petition, the government reiterated many of its views that hadn’t held water with the original three-judge panel—prosecutors dismissed the mosaic theory as “novel.”

  “The panel’s conclusion that Jones had a reasonable expectation of privacy in the public movements of his Jeep rested on the premise that an individual has a reasonable expectation of privacy in the totality of his or her movements in public places,” Assistant US Attorney Smith wrote. “Although ‘prolonged monitoring’ may capture more information than discrete instances of surveillance, the type of information collected is the same regardless of the duration of the collection.”

  On November 19, 2010, the vote to hear the case en banc was voted down 6–3, setting the stage for a cert petition to the Supreme Court. With the ruling at the 7th Circuit in Garcia going one way, and the ruling in the DC Circuit going another, the conditions were ripe for the Supreme Court to hear the case. Nearly a year later, on November 8, 2011, the Supreme Court convened to hear Case 10-1259, United States v. Jones.

  The composition of the Supreme Court had changed somewhat since Kyllo in 2001. First, it was led by Chief Justice John Roberts, a conservative who formerly served as a clerk for Chief Justice Rehnquist. (Roberts has held this position since September 2005.) But the 2012 Supreme Court had five notable holdovers from 2001, including Antonin Scalia, Anthony Kennedy, Ruth Bader Ginsburg, Stephen Breyer, and Clarence Thomas. Rounding out the court was Justice Samuel Alito (a conservative), along with Sonia Sotomayor and Elena Kagan (two liberals).

  Representing the government again was Michael Dreeben, who argued for the government in Kyllo more than a decade earlier, as deputy solicitor general. As the petitioner, the government spoke first.

  “Mr. Chief Justice, and may it please the Court,” Dreeben’s somewhat high and reedy voice intoned.

  Since this Court’s decision in Katz v. United States, the Court has recognized a basic dichotomy under the Fourth Amendment. What a person seeks to preserve as private in the enclave of his own home or in a private letter or inside of his vehicle when he is traveling is a subject of Fourth Amendment protection. But what he reveals to the world, such as his movements in a car on a public roadway, is not. In Knotts v. United States, this Court applied that principle to hold that visual and beeper surveillance of a vehicle traveling on the public roadways infringed no Fourth Amendment expectation of privacy.

  Chief Justice Roberts jumped right in.

  “Knotts, though, seems to me much more like traditional surveillance,” he said. “You’re following the car and the beeper just helps you follow it from a—from a slightly greater distance. That was 30 years ago. The technology is very different and you get a lot more information from the GPS surveillance than you do from following a beeper.”

  Dreeben acknowledged that while the technology was different, in Knotts, police lost track of the car as it was driving from Minnesota to Wisconsin for a full hour.

  “They only were able to discover it by having a beeper receiver in a helicopter that detected the beeps from the radio transmitter in the can of chloroform,” he replied.

  “But that’s a good example of the change in technology,” Roberts retorted.

  That’s a lot of work to follow the car. They’ve got to listen to the beeper. When they lose it they have got to call in the helicopter. Here they just sit back in the station and they—they push a button whenever they want to find out where the car is. They look at data from a month and find out everywhere it’s been in the past month. That—that seems to me dramatically different.

  Eventually, Justice Scalia chimed in—noting his displeasure with the entire Katz reasonable expectation of privacy notion—and focused on the physical trespass of the GPS device on Jones’ car. Not long after, Chief Justice Roberts stunned the court with a key question.

  “You think there would also not be a search if you put a GPS device on all of our cars, monitored our movements for a month?” he asked Dreeben. “You think you’re entitled to do that under your theory?”

  “The justices of this Court?” the deputy solicitor general asked.

  “Yes.”

  “Under our theory and under this Court’s cases, the justices of this Court when driving on public roadways have no greater expectation—”

  “So your answer is yes, you could tomorrow decide that you [want to] put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?”

  “Well, equally, Mr. Chief Justice, if the FBI wanted to it could put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets and they would thereby gather—”

  Leckar, sitting at the other counsel table, was stunned. He said to himself: “That’s it, we’ve won.”

  After some more repartee, Justice Sotomayor stepped in with this inquiry to Dreeben: “Tell me what the difference is between this and a general warrant?”

  She continued: “What motivated the Fourth Amendment historically was the disappr
oval, the outrage, that our Founding Fathers experienced with general warrants that permitted police indiscriminately to investigate just on the basis of suspicion, not probable cause and to invade every possession that the individual had in search of a crime. How is this different?”

  Dreeben didn’t have much of an answer, other than to say that the observations of movements in public did not constitute a search.

  When it was Leckar’s turn, he initially focused not only on the search question, but on the seizure—that Jones’ car was temporarily “seized” in order to place the GPS device on it. By focusing on the physical trespass, he was directly addressing Justice Scalia, and perhaps Justices Thomas and Alito as well.

  After some back-and-forth between Leckar, Alito, Roberts, and Scalia, the outspoken conservative justice finally cut through the chatter: “You do not give anybody permission to have your car carry a tracking device.”

  Leckar was, by his own admission, a bit nervous—until he regained his footing when Scalia asked why using the GPS tracker was unreasonable, if a police department could unquestionably post dozens of officers along Jones’ route.

  This was the moment where Leckar really drove to the heart of the matter, that a GPS tracker was a “complete robotic substitute” for human law enforcement.

  “A GPS in your car is, or anybody’s car, is like—without a warrant, is like having an—it makes you unable to get rid of an uninvited stranger,” he said.

  Scalia pushed him, asking him how a GPS was different than a traditional police tail, where a human officer was following along in another car.

  “A tail—if they can—if they want to tail, if they want to commit the resources, that’s fine. But what a GPS does, it involves—it allows the government to engage in unlimited surveillance through a machine, through a machine robotically,” Leckar concluded, almost rushing through the words. “Nobody is even involved monitoring it. The record in this case showed that many times the police officers just let—let the machine go on.”

  Some minutes later, Alito seemed to articulate a split between the Scalia wing—which focused on the physical trespass onto Jones’ car—and the broader point that warrantless surveillance of this magnitude was unconstitutional.

  “So what you’re concerned about is not this little thing that’s put on your car,” Justice Alito said. “It’s not this invasion of your property interest. It’s the monitoring that takes place.”

  “The monitoring makes it meaningful,” Leckar replied. “Putting it on enables them to—”

  “But to ask Justice Alito’s question in a different way,” Justice Kagan jumped in. “Suppose that the police could do this without ever committing the trespass. Suppose that in the future all cars are going to have GPS tracking systems and the police could essentially hack into such a system without committing the trespass. Would the constitutional issue we face be any different?”

  In the end, Leckar’s proposed rule for law enforcement was simple: “If you want to use GPS devices, get a warrant, absent exigent circumstances or another recognized exception to the Fourth Amendment, because of their capacity for—to collect data that you couldn’t realistically get; because of the vanishingly low cost, because of their pervasive nature, that you should get a warrant any time—you must get a warrant any time you’re going to attach a GPS to a citizen’s effect or to a citizen’s person.”

  Dreeben got a few more moments at the end of the hour-long oral argument, and the case was submitted.

  * * *

  On January 23, 2012, the Supreme Court ruled unanimously in favor of Leckar and his client, Antoine Jones. However, the justices were split on exactly why the installation of the GPS tracker was, in fact, an unconstitutional search.

  Justice Scalia wrote the opinion that four other justices signed onto, largely relying on the question of the physical trespass onto Jones’ Jeep. In fact, because there was the trespass onto the Jeep, that was basically the beginning and the end of the legal analysis: no questions of Katz or a reasonable expectation of privacy even needed to be considered.

  By contrast, Justice Alito, writing for the remaining four justices, criticized Scalia’s opinion as being “unwise” and “highly artificial,” as it was too reliant on eighteenth-century notions of trespass. Rather, Alito continued, he would “analyze the question presented in this case by asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”

  Plus, Alito continued, twenty-first-century snooping was entirely different. After all, it was impossible to track someone’s movement so discretely—recording a precise location every 10 seconds for a month straight—centuries ago.

  But it is almost impossible to think of late 18th-century situations that are analogous to what took place in this case. (Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?).

  In any case, the Alito wing pointed out that in the pre-computer age, there was an inherent mechanism that made such broad surveillance untenable: economics.

  “Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken,” Alito continued.

  The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance. Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.

  Most curiously, Justice Sotomayor, who signed onto the Scalia opinion, wrote her own concurrence as well, taking the question presented by Jones one step further. She suggested that most people would not consider that a vast aggregation of one’s movements by the government would be reasonable. Sotomayor also noted that it may be worthwhile for the court, in a future case, to entirely reevaluate the notion of the third-party doctrine (as solidified by Smith v. Maryland), which allows the government to obtain vast quantities of data without a warrant.

  “This approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” she concluded.

  In the end, Sotomayor noted that these further questions need not be reached as part of Jones, as she found herself joining on to the trespass analysis.

  * * *

  The Jones decision sent shockwaves throughout the privacy and legal world.

  “Law enforcement is now on notice,” Walter Dellinger, another one of Jones’ attorneys, told the New York Times, “that almost any use of GPS electronic surveillance of a citizen’s movement will be legally questionable unless a warrant is obtained in advance.”

  The FBI put out a guidance to all special agents that effectively said: “turn off all your GPS,” and another that instructed agents as to how to go retrieve devices that had already been deployed. That single agency alone had over 3,000 GPS trackers out in the field at the time, according to then FBI general counsel Andrew Weissmann, who spoke at a law school conference in San Francisco roughly a month after the Supreme Court’s 2012 ruling.

  During that panel discussion, Weissmann spoke about two memos that the FBI was currently drafting: one focused on the use of GPS tracking on forms of transportation beyond cars, the other speaking on how Jones applies to tracking methods outside of GPS (presumably like cell phone ping data).

  “Is it going to apply to boats, is it going to apply to airplanes?” Weissmann asked. “Is it going to apply at the border? What’s it mean for the consent that’s given by an owner? What does it mean if consent is given by a possessor? And this is all about GPS, by the way, without getting into other types of techniques.”

  Within several months of Weissmann’s talk, activ
ist attorneys from the American Civil Liberties Union (ACLU) and the Electronic Frontier Foundation sued the FBI to obtain the new memos that Weissmann discussed as a way to better glean what the agency was doing.

  “We still have no idea what the FBI is doing in terms of tracking, post-Jones,” Catherine Crump, then an ACLU attorney, told Ars Technica at the time. “If all Jones means is that law enforcement agents have to track you through your phone instead of your car, it’s not going to mean much in the end.”

  That’s still true today. More than five years later, the ACLU has yet to receive any meaningful documents responsive to its original public records request. The FBI did release over 100 pages, but they were almost entirely redacted. The ACLU chose not to pursue further litigation.

  Neither the Supreme Court nor the DOJ have come up with a precise definition of what kinds of surveillance should be restricted, or even prohibited. In Garcia, Circuit Judge Posner, who ultimately ruled that the installation of the GPS device was not a search under the Fourth Amendment, nevertheless was aware of the potential for broad invasiveness.

  “Technological progress poses a threat to privacy by enabling an extent of surveillance that in earlier times would have been prohibitively expensive,” Posner wrote. “Whether and what kind of restrictions should, in the name of the Constitution, be placed on such surveillance when used in routine criminal enforcement are momentous issues that fortunately we need not try to resolve in this case.”

  In the wake of Jones, various lawyers and judges have tried to come up with a qualitative definition as to why using newer and potentially invasive technology in place of what could have been accomplished by older gear is problematic. In other words, if society accepts that in most circumstances, the police can follow a suspect on foot or in a car, then why is it problematic for the police to use a GPS, an infrared scanner, or a drone? The answer may lie in how far beyond the human capacity for observation a particular technology can go. GPS, after all, can retain indefinite volumes of information in ways that a fully mobilized police department cannot.