COMMENTARY | It seems again that the government is asking for a blanket right to keep tabs on its citizens without any court oversight in the case of United States v. Antoine Jones (Supreme Court Case No. 10-1259). This sounds eerily familiar to the warrantless wiretapping cases after 9/11 that resulted from provisions in The Patriot Act. In the present case, the government argues that police should have the right to install a GPS device without the individual’s knowledge, to track a suspect because this is no more invasive than visual monitoring. The Supreme Court justices appear to be frowning upon the argument that a GPS device is not an invasion of privacy as indicated by Justice Breyer’s statement that this “sounds like 1984,” referring to the police state in George Orwell’s novel. Justice Kennedy had “serious reservations” and Justice Scalia called it “unquestionably a trespass.”
I see the benefit of these devices – if my child was abducted, I would want GPS devices plastered all over every suspect’s vehicle without his or her knowledge. In fact, I would advocate knocking him senseless and putting one on his body if that would find my child. However, in cases such as this we must separate emotions and look at the doors we are opening by allowing invasions of our privacy. For example, The Foreign Intelligence Surveillance Act and the Foreign Intelligence Surveillance Court were established to provide oversight and control over intelligence gathering; however, the fear created by 9/11 gave Congress the power to erode the already minimal requirements under FISA through amendments contained in The Patriot Act. Our fear of terrorism and the widespread panic after 9/11 gave way to warrantless wiretapping of U.S. citizens in violation of their constitutional rights. We must be careful not to repeat these mistakes with GPS tracking just because the technology exists and attorneys can argue frightening cases where GPS tracking would save lives.
Instead of concentrating on obtaining carte blanche with regard to GPS tracking, government attorneys and Congress should concentrate on writing laws that permit the use of available technology in cases that require swift action (i.e. as police are allowed to enter a home without a warrant if they perceive immediate danger).