Supreme Court Sees Shades of 1984 in Unchecked GPS Tracking

WASHINGTON — A number of Supreme Court justices invoked the specter of Big Brother while hearing arguments Tuesday over whether the police may secretly attach GPS devices on Americans’ cars without getting a probable-cause warrant.

While many justices said the concept was unsettling, the high court gave no clear indication on how it will rule in what is arguably one of the biggest Fourth Amendment cases in the computer age. The Obama administration maintains that Americans have no privacy rights when it comes to their movements in public.

Justice Stephen Breyer told Deputy Solicitor General Michael Dreeben that, “If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day every citizen of the United States.”

Breyer said that “sounds like 1984.”

Chief Justice John Roberts wondered aloud whether the government’s position was that it may secretly attach GPS devices to the cars of the nine members of the Supreme Court without a warrant.

“You think they are entitled to do that?” Roberts asked.

“The justices of the Supreme Court?” Dreeben replied.

“So your answer is, ‘yes,’ you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?” the chief justice continued.

“Well, equally, Mr. Chief Justice, if the FBI wanted to it could put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets …, Dreeben replied.

Justice Sonia Sotomayor suggested the government’s position went too far, especially in the age of “smart phones” that contain GPS tracking devices.

“It would be OK to put a computer chip and put it on somebody’s overcoat?” she asked. Dreeben said Sotomayor was off base because her scenario would allow GPS monitoring inside a home. “That is off-limits,” he said.

However, “a car parked in the garage,” he added, “does not have a reasonable expectation of privacy.”

But the justices seemed troubled on whether a warrant was always necessary, and whether they should take into account how long the monitoring continues. “Where do you draw the line?” Justice Samuel Alito asked.