May 2009

In a four-to-three decision last week, New York's highest court rejected the use of global positioning system (GPS) technology by law enforcement to secretly track an individual's movements without first obtaining a warrant. Over the past several years, GPS technology has become an increasingly ubiquitous convenience. As the technology's prevalence and utility grows, however, the potential for its abuse raises important and delicate questions of constitutional law that remain largely unsettled.

With its decision, the New York Court of Appeals joins the Washington Supreme Court in concluding that government GPS tracking requires a warrant. A number of courts, however, have reached the opposite conclusion. In the most prominent case to yet address the issue, Judge Posner wrote for the Seventh Circuit in United States v. Garcia that the tactic did not in itself trigger the warrant protections of the Fourth Amendment.

Judge Posner's reasoning on this issue unfortunately was based on his interpretation of the Supreme Court's decision in United States v. Knotts, which permitted police to use simple "beeper" technology without a warrant when tracking a single suspect's movements. Knotts, however, is of limited value here. First, the court acknowledged that in the event that "dragnet-type" twenty-four hour surveillance were to become a reality, "different constitutional principles may be applicable." Second, the technology addressed in Knotts simply isn't analogous to the capabilities of GPS. Whereas beeper technology "augmented" officers' own visual observations, GPS technology provides a complete and superior substitute for physical tracking. In more recent decisions, the Court has indicated that similarly sophisticated techniques such as thermal imaging and satellite surveillance technologies require a warrant.

For his part, Judge Posner didn't rule out that GPS tracking may require a warrant in the event that it's applied on a "mass" basis. But such a distinction wrongly suggests that the Fourth Amendment affords less privacy protection to individuals than to victims on a mass scale.

Some observers anticipate that marriage equality, reproductive rights, gun-safety laws and other predictable issues will dominate the confirmation hearings for President Obama's nomination to the Supreme Court. Ohio State University law Prof. Peter Shane (left), who is moderating a panel on executive power at the 2009 ACS National Convention, reminds us that separation of powers issues should not be overlooked in determining a nominee's fitness to serve on the high court.

Writing for the University of Chicago Press, publisher of Shane's latest book Madison's Nightmare: How Executive Power Threatens American Democracy, Shane explained his concerns: 

During the second Bush Administration, a change of one vote on the Supreme Court would have deprived military detainees of habeas corpus rights or extended procedural protections so minimal as to be laughable.

The Supreme Court currently boasts a solid right-wing bloc of Chief Justice Roberts and Associate Justices Scalia, Thomas, and Alito, all of whom are strong defenders of executive power. What does this mean for the choice of a successor to Justice Souter?

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