Monday, “in a first test of how privacy rights will be protected in the digital age,” the United States Supreme Court found that police surveillance carried out via warrantless global positioning system tracking in the case of United States v. Jones (2011) amounted to a direct violation of the 4th Amendment’s Warrants Clause. In an apparent victory for constitutionalists, the Supreme Court decided – unanimously at that – that “the Government’s physical intrusion on an ‘effect’ for the purpose of obtaining information constitutes a ‘search.’ This type of encroachment on an area enumerated in the Amendment would have been considered a search within the meaning of the Amendment at the time it was adopted.”
I have little doubt that the litigant in this case, Antoine Jones, is probably guilty of narcotics trafficking as accused. But that alleged fact alone does not alleviate the government’s responsibility to conduct itself in a manner consistent with high standards of law enforcement ethics and constitutional propriety. This case, in that sense, becomes much bigger than Jones and illustrates that principle – the foundation of credibility and legitimacy where a relationship between government and the consenting governed are concerned – must be exercised even when it is inconvenient or when it might result in the guilty going free. No system is perfect in practice so when difficulties arise in our governmental system, we must err on the side of protecting individual rights pursuant to government’s just purpose; consequentialism is a well-practiced art of tyrants.
Clearly, neither the digital nature of modern surveillance nor the expanded technology now available for both public and private use negate the inherent premise of the 4th Amendment’s purpose: to require the executive branch of government to establish probable cause (pursuant to obtaining a legitimately issued warrant) to the judicial before it surveils the populace (or an individual). To that end, this ruling upholds the notion that the Constitution is not a living document absent the amendment process. It was laid down (mostly) on a basic foundation of ethical principle, and ethics are everlasting even if the environmental factors and circumstances change over time with an ever-evolving society. Unfortunately, the Court failed to address the concept of “reasonable expectation of privacy,” saving that decision – as they are so often apt to do – for another day.
While United States v. Jones may have been the first 4th Amendment case with modern technological implications at its heart to reach the Supreme Court, the elephant in the room still remains the Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism (USA PATRIOT) Act. Lower courts have already determined provisions of the so-called PATRIOT Act violate the 1st and 4th Amendments (among other constitutional aspects), yet it has not been taken up by the Supreme Court in its now decade-long existence. If the Court fails to acknowledge an appeal by the government, or the government itself fails to make one, then the lower ruling stands – which means that current utilization of these provisions of the Act amount to criminal activity on the executive branch’s part (including the previous administration).
One thing is for certain: the Court cannot kick the can down the road indefinitely. Either the justices will have to publicly acknowledge that Big Government trumps privacy rights in the 21st century – effectively ending any legitimate notion of a “free” society and handing terrorists a major ideological victory – or they will have to actively or passively acknowledge that warrantless surveillance based on suspicion alone is antithetical to American (classic) liberal values and constitutional sovereignty.