Supreme Court Decision in United States v. Jones a Significant Step in Preventing a Surveillance State
by Horace Cooper
In a major blow for liberty and Constitutional government, the U.S. Supreme Court unanimously ruled this week that the government can't rely on technology to get around the Fourth Amendment's ban on warrantless searches.
In United States v. Jones, the high Court considered whether the police or any other government official could attach a GPS tracking device to anyone's car without first getting a judge's warrant. Government lawyers tried to argue that placing a tracking device that followed you in your car on the highway and anywhere you went was okay because they could just as easily have followed you with a police car. Plus, they added, whenever you leave your home you should assume that, since you are in public, your whereabouts are not private. This is astonishing.
Sounding more like a Tom Clancy or Dean Koontz bestseller and not a basis for somewhat stale legal briefs, the issues resolved by the Supreme Court have far-reaching ramifications.
Most Americans would be quite surprised to learn the federal government is willing to argue that it can track all of any citizen's comings and goings without any probable cause or reliance on a warrant. And they would shocked to understand that not only could the feds track you, so could your local taxing authority. What next, tracking devices installed by your HOA?
The decision in United States v. Jones is a victory against the surveillance state.
In no uncertain terms, Justice Scalia, author of the ruling, focused squarely on the Fourth Amendment to the Constitution, which provides that "[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated."
The Court found it "beyond dispute that a vehicle is an 'effect' as that term is used in the Amendment," and therefore held that installing a surveillance tracking device to a car was in fact a "search" requiring a court-issued warrant. As well it should have.
Without this ruling, the United States would come awfully close to the Orwellian world in which the local, state and federal governments would be given free license to surveil any and all Americans using state of the art microphones and transmitters – all with no court oversight.
A world in which eavesdropping and location-monitoring devices can be placed under our vehicles or inside our briefcases and handbags by any government functionary is a world that would make our Founders recoil. Big Brother wouldn't just be a show on CBS anymore; it would be a lifestyle free from the oversight of the Constitution and the Bill of Rights.
Pretending that the Constitution's Fourth Amendment protection simply disappears into some legal void when the search in question is carried out electronically or via an orbiting GPS satellite not only threatens the liberties of all Americans, it rejects our Founders' straight-forward understanding of the government's limitations.
Fortunately, the Court stepped back from that legal abyss. After the Jones ruling, government searches will continue to be constrained by the Constitution. With this decision, the Court placed bona fide limits on the ever-encroaching surveillance state. The vigilance the Supreme Court showed in this case will protect every American and does so by resting on our Founders' understanding that government can't get around the Constitution's Fourth Amendment protections simply by using new technology to search our property or us.
Instead of relying on some artificial and amorphous "right of privacy" – as the Court too often does – Justice Scalia's opinion emphasized the importance of the historical purposes and original intent of the Fourth Amendment as it was crafted. It reminded us that it was included in our Constitution to protect our citizenry against government trespasses against people and their private property.
As Scalia explained: "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted. . . . [F]or most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas ('persons, houses, papers, and effects') it enumerates."
And with this nod to the Constitution's original meaning and intent, the Court's Fourth Amendment jurisprudence remained concerned with preserving "that degree of privacy against government that existed when the Fourth Amendment was adopted."
Such concern, particularly when ratified by a unanimous Court, is a gratifying and significant stride in the right direction, demonstrating – in this area at least – a sustained interest in protecting our liberty, our property rights, and our American way of life.
Horace Cooper is a legal commentator and an adjunct fellow with the National Center for Public Policy Research.