United States v. Jones: The Futile Search for Complete Safety
“In Vegas, everybody’s gotta watch everybody else. Since the players are looking to beat the casino, the dealers are watching the players. The box men are watching the dealers. The floor men are watching the box men. The pit bosses are watching the floor men. The shift bosses are watching the pit bosses. The casino manager is watching the shift bosses. I’m watching the casino manager. And the eye-in-the-sky is watching us all.”
—Sam “Ace” Rothstein (Robert DeNiro) in Casino (1995).
Ace Rothstein’s observations on the elaborate surveillance operations of the casino empire he oversaw on behalf of the Mafia in 1970s Las Vegas are disconcertingly applicable to post-9/11 America. In the years since that horrible day in September, a gargantuan security-industrial complex has taken shape, at both the federal and local level, purportedly for the purpose of preventing terrorism. As a result, the precarious balance between the need for effective law enforcement and respect for the privacy rights of individuals has become increasingly skewed in favor of the state.The recent Supreme Court ruling in United States v. Jones has slightly shifted the pendulum of governmental power back in the direction of the American public. Unfortunately, much more legislative action is needed to clarify the legal parameters that govern electronic and digital monitoring of Americans.
II. The Case
In United States v. Jones, defendant Antonio Jones was a Washington D.C. nightclub owner who also allegedly moonlighted as a drug trafficker. Local police, in collaboration with the FBI, began tracking Jones’s movements with use of a Global Positioning System (GPS) device, which they had physically attached to his car without obtaining authorization, in the form of a judicial warrant, from a court. As a result, they were able to track and record all of Jones’ driving habits without engaging in the continuous physical monitoring of Jones, as would have been necessary had he been personally surveilled by officers. This went on for nearly four weeks, when Jones was arrested by the FBI.
At trial, Jones raised the issue of warrantless GPS tracking, and he was acquitted on most, but not all charges. Eventually, though, after two trials, he was convicted of conspiracy to distribute drugs and possession of drugs with intent to distribute, which in his case carried a potential sentence of life in prison. Jones appealed this verdict to the U.S. Court of Appeals in Washington D.C., which overturned his conviction.
In June of 2011, the Supreme Court agreed to hear an appeal based on two questions raised in the case. First, did the use of a tracking device on Jones’ vehicle, placed without a warrant, in order to track his vehicle on public streets, violate his rights to be safe from unreasonable searches and seizures, as provided by the Fourth Amendment of the United States Constitution? Secondly, did the physical installation of a GPS device on Jones’s vehicle violate his Fourth Amendment rights? These questions can be distinguished in that the second line of inquiry attempts to tease out the legality of officers personally intruding on Jones’s vehicle to attach a tracking device, while the first question attempts to discern the legality of warrantless electronic tracking and monitoring more broadly.
In January of 2012, all nine Supreme Court justices ruled that Jones’ rights were violated by the police’s actions in using a GPS device without a warrant. However, the complex and varied ways in which the justices reached this relatively narrow conclusion underscore the tremendous ambiguity that still exists around the issue of electronic monitoring.
III. Varied Interpretations
Justices Roberts, Scalia, Thomas, Kennedy, and Sotomayor all focused on the warrantless installation of a tracking device on Jones’ car. Writing for this viewpoint, Justice Antonin Scalia argued that installing a tracking device on a vehicle without a valid warrant from a court was a trespass on the “effects” of a person, in violation of the Fourth Amendment prohibition against “unreasonable searches and seizures” of people in their “persons, papers, houses and effects.” Scalia’s holding focused heavily on the physical act of the government placing a tracking device on a vehicle, citing a long line of Supreme Court decisions that found that an intrusion upon a person and his or her possessions without a valid warrant, in circumstances where such a warrant could have been easily obtained, was an unreasonable search and seizure. Scalia also noted that the physical intrusion upon Jones’ property by authorities was not in itself a Fourth Amendment violation, but rather, when considered in conjunction with the installation of a GPS device, without a warrant, it amounted to an unconstitutional abridgment of Jones’ rights.
Justice Samuel Alito, joined by Justices Ginsburg, Kagan, and Breyer, utilized a different approach to critique the tracking of Jones’s vehicle, choosing to focus upon whether Jones’s reasonable expectations of privacy were violated by the FBI’s actions. This was a doctrine established in earlier Supreme Court cases, relating to wiretapping of public phone booths by police. In those decisions, the court held that what mattered was whether a person could have reasonably expected privacy in the space that was invaded (the public phone and booth), rather than whether any physical trespass or intrusion (installation of a recording device) had occurred. Alito found that based on the principles of these earlier cases, Jones’ reasonable expectation of privacy was indeed violated. Alito also argued that the act of placing a GPS system under the vehicle was far less significant than the actual functioning of the GPS system, specifically, it’s ability to track movement for an extended period of time. After all, he countered, if the federal government mandated or convinced every automaker to install a GPS system in vehicles, and then utilized these GPS systems to monitor a driver’s activities, Scalia’s arguments about physical trespass or intrusion would have little bearing. The government would be able to monitor people without any physical intrusion.
Justice Sonia Sotomayor prepared a separate concurring opinion, where she expressed her agreement with Justice Scalia’s view that physical trespass to install a GPS system was a Fourth Amendment violation, but also agreed with Justice Alito that since it was not necessary to physically intrude upon a person’s possessions or property for purposes of monitoring, a broader definition of surveillance was required.
The Court’s unanimous finding in favor of Jones is a welcome development. At a minimum, it limits the unchecked power of the state to effortlessly track suspects by attaching GPS devices to vehicles. However, due to Justice Alito’s and Justice Sotomayor’s concurring opinions, it is still not clear just how far this decision reaches in terms of limiting future surveillance actions with the use of tracking devices.
IV. A Broader Definition of Surveillance
A. Cell Phone Tracking
What is patently clear is that governmental surveillance of Americans has expanded exponentially over the last few decades and particularly since 9/11. Often, this surveillance is conducted with minimal or nonexistent suspicion of any actual or potential wrongdoing. According to documents recently obtained by the American Civil Liberties Union (ACLU), essentially all of the 205 police departments from which the ACLU sought records admitted that they were tracking cell phones by location, in many cases without a warrant. Through such tracking, law enforcement can quickly paint a comprehensive picture of a person’s movements and habits, since whenever a cell phone is on it transmits and receives signals that indicate location (this is true not just for smart phones with data usage but for all cell phones).
The ACLU findings also showed that there was a wide divergence in the standards of suspicion that police departments required before allowing tracking of cell phones; in some cases, the higher standard of probable cause was utilized, while in other departments, cell phone usage being merely “relevant and material” to an investigation was sufficient. In some cases, police departments have purchased the necessary technology to track cell phones themselves. However, in many other instances, major phone carriers have assisted police departments in circumventing customer privacy, and have profited from this arrangement, as they charge local police departments fees for tracking customer cell phone usage.
There are certainly situations where tracking an individual’s cell phone patterns may be necessary, be it for a person who has gone missing, or for tracking a dangerous criminal who could harm others. Yet, the reality that some departments are able to obtain court warrants in order to protect citizen privacy while others choose to simply keep tabs on cell phone usage as they please indicates that there are substantial inconsistencies in the procedures of cell phone tracking by law enforcement.
A more uniform policy, geared toward providing reasonable protection for the privacy of citizens, is required. For example, the Geolocation Privacy and Service (GPS) Act, sponsored by senators and House representatives from both political parties, wouldmandate the use of warrants for obtaining location information. Such legislation would further an appropriate balance between the interests of law enforcement and the sanctity of individual freedom and privacy.
B. Drone Technology
As troubling as tracking of cell phone usage is, even more problematic is the increasingly widespread use of drone technology by local law enforcement. Such technology was originally deployed for tracking and defeating militant activity in such hotspots as Yemen and the Waziristan region of Pakistan but is now being used at home as well. As the FAA relaxes restrictions on the use of small drone technology by local law enforcement, police will be able to track the public movements of individuals for extended periods of time and with minimal cost, since unmanned drones can be operated for as little as $50 per hour, compared to potentially thousands of dollars an hour for a helicopter (which requires the presence of a human pilot).
With the advanced facial recognition devices that the drones of the future are increasingly equipped with, it’ll be simple for police departments to even more accurately track the daily movements of any target they choose (and once again, there are no requirements for any actual suspicion of wrongdoing before someone can be tracked). Additionally, because of the increasingly miniature size of these drones, they can be utilized throughout public spaces, to watch many individuals simultaneously, with few of these people having any idea that they are being surveiled. This allows for law enforcement to operate in a surreptitious, unaccountable fashion. Such surveillance could be utilized against not only actual criminal suspects, but also to monitor political activists or other dissident groups, as has been done repeatedly by both federal and local law enforcement since 9/11. In fact, U.S. House Representative Peter King (R-NY), who serves as the head of the House Committee on Homeland Security, recentlyendorsed the legitimacy of drones in patrolling large crowds (read: political demonstrations) in the United States.
C. The NSA Project at Bluffdale
If only these highly problematic practices were confined to a few overzealous police departments, Americans might be able to breathe a bit more easily, knowing that concerted activism by civil libertarians might stop or at least slow such intrusive activities. However, the most extensive and ambitious surveillance, data collection, and code-breaking project in American history is currently being constructed in Bluffdale, Utah, courtesy of the National Security Agency (NSA). James Bamford of Wired recently published a fantastic expose on this behemoth project. The Bluffdale facility is upwards of five times the size of the U.S. Capitol and will cost $2 billion to construct.
Some of the efforts at Bluffdale are geared toward capturing and decoding encrypted data originating from abroad, ranging from phone calls and emails to legal documents and Google searches. Such activities are an integral part of foreign intelligence-gathering efforts by many nations and are permissible under U.S. law. However, as Bamford notes, “For the first time since Watergate and the other scandals of the Nixon administration,” the NSA is monitoring the domestic activities of Americans by setting up “listening posts” throughout the United States to track the telephone and online activities of Americans. The data gleaned from these operations is then analyzed and categorized through the use of advanced software developed by NSA scientists in order to form detailed profiles of individuals and groups based upon information ranging from parking receipts to phone conversations. The NSA also monitors AT&T satellite receivers responsible for overseas communications and utilizes numerous other methods to keep a watchful eye on Americans, thus earning the moniker “Never Say Anything.” Bluffdale, as an ambitious project for storing and analyzing even more data, represents a continued escalation of the post-9/11 security state.
V. Questionable Legality
The NSA’s vastly expanded scope derives in part from the events of 9/11 and the subsequent decision by President George W. Bush to allow the NSA to monitor the phone calls and emails of Americans communicating with individuals abroad, without the use of court-approved warrants. Traditionally, domestic wiretaps (where at least one party to a communication was located in the U.S.) by the NSA required approval by judges empaneled under the Foreign Intelligence Surveillance Act (FISA). However, administration officials now chose to circumvent this convention, engaging in warrantless wiretapping (without any FISA approval) within the United States.
While this process was of questionable legality, and while some of those involved in the program feared potential legal punishment, Congress eventually chose to provide a legal basis for the NSA’s actions through the FISA Amendments Act of 2008. This legislation allowed for increased time periods of warrantless wiretaps. Additionally, telecommunications and other service providers who cooperated with law enforcement in providing access to customer communications were provided with immunity from civil liability to those whose data they had made available. Ultimately, these actions by the NSA, and their endorsement by Congress, have led to the United States racing down the slippery slope of expanded governmental intrusion and reduced individual liberties. In fact, Daniel Ellsberg, the intrepid whistleblower who leaked the Pentagon Papers, has compared the powers provided by FISA amendments to those enjoyed by the Stasi, communist East Germany’s secret police.
The disastrous impact of these policies is further confirmed by William Binney, whom Bamford interviewed for his pace on the Bluffdale site. Binney was a leading NSA crypto-mathematician who helped design much of the NSA’s network to intercept communications. He left the NSA in protest after 2001, as the warrantless wiretapping program took hold, and agency officials refused to consider his suggestions to provide legal safeguards against warrantless wiretapping. Binney has indicated that the NSA’s wiretapping activities were far more extensive than originally reported, extended to not only phone surveillance but also email, and were carried out with the assistance of major phone and internet service providers like Verizon and AT&T. Binney also notes that despite lofty rhetoric, the Obama administration has not been much more effective on issues of limiting electronic surveillance than their predecessors. Ultimately, Binney warns, the U.S. is dangerously close to becoming a “turnkey totalitarian state.”
It is clear that there are real security threats, both local and global, that can cause tremendous harm to American security. Wanton drug violence in Mexico has the potential to spill over into the United States, which could have wide-ranging negative consequences for both the economy and public safety. Terrorist plots to detonate a bomb in Times Square, and a viable plan by several New York men trained in Pakistan to conduct coordinated suicide bombings on the Manhattan subway system, remind us that the potential for horrific bloodshed is ever-present. The carnage in Norway, London, and Madrid are further symptoms that Western nations are deeply vulnerable to the twin pathologies of extremism and violence.
However, the measure of a people, and of their ideals, lies in how they face testing circumstances. Will we honor the best aspects of our constitutional heritage, respecting the rights of the individual and acknowledging the need for strong checks upon the power of governmental authorities to track and watch Americans? Or will we succumb to fear and allow our futile search for complete safety to wash over the ideals that always give us that fighting chance to remain a great nation? Americans will have to make a decision as to what kind of society we want to live in, and then push our legislators to draft laws that clearly reflect those values.
The Supreme Court’s decision in United States v. Jones is a positive step in reigning in unchecked government surveillance, but it is not nearly enough. Due to the varying opinions set forward by Justices Scalia and Alito, with Justice Sotomayor expressing some agreement with both, it is unclear whether extended warrantless GPS tracking with the physical attachment of a GPS device is forbidden, or whether unauthorized GPS monitoring in general is no longer permitted. Additionally, this decision does not address issues like drone surveillance, cell phone monitoring, or the parameters of the national security state more broadly. Only legislative action, forced by the political activism of civil libertarians, can restore the hard-earned balance between individual rights and law enforcement concerns. There is no other way.