Reasonable Expectations—A Commentary by Linda Greenhouse ’78 MSL
The following commentary was posted on newyorktimes.com on November 16, 2011.
By Linda Greenhouse ’78 MSL
The other day, stopped at a red light in downtown New Haven, I looked up and noticed cameras pointing in all four directions of the intersection. Probably they were cameras designed to detect red-light runners. Or maybe their purpose was general surveillance. No matter – the point was that big brother was watching. Big brother, as we all have plenty of reason to believe, is watching everyone.
And that’s why a current case on the Supreme Court’s docket has resonated so deeply with the public. No, I don’t mean health care, about which I will have more to say in future columns. I mean the case, argued last week, about whether the police can attach a GPS device to a person’s car and follow its every move for a month – without a warrant. The question is whether the high-tech surveillance of the publicly visible movements of a suspected drug dealer amounted to a search that violated the Fourth Amendment.
The case, United States v. Jones, has generated an enormous amount of attention, unusual for a criminal case that doesn’t involve the death penalty or terrorism. The search terms “GPS” with “Supreme Court” produced 100 screens of responses on Google. Although the justices will decide the case in formal doctrinal terms, there is no getting away from the deeper issue: what, if any, are the permissible limits of government watchfulness over our daily lives. Supreme Court cases occasionally come along that tell us as much about ourselves as about legal doctrine or the court itself, and this is one of them.
In fact, last week’s argument found the members of the court behaving as much as our surrogates as they were our judges. Across the ideological spectrum, they expressed alarm at the federal government’s core argument, which is that because the GPS tracks the location of vehicles only as they travel the public roadways — as law enforcement agents could do with their own eyes if there were enough of them and they could move fast enough — nothing of constitutional consequence occurred. There was no search.
“You think there would also not be a search,” Chief Justice John G. Roberts Jr. asked Michael R. Dreeben, the deputy solicitor general who argued for the government, “if you put a GPS device on all of our cars, monitored our movements for a month? You think you’re entitled to do that under your theory?”
The normally unflappable government lawyer stalled for time. “The justices of this court?”
Of course, as the chief justice knew, the government’s theory gave Mr. Dreeben no choice. I’ll quote at length, from the official transcript, of what followed.
Mr. Dreeben: “Under our theory and under this court’s cases, the justices of this court, when driving on public roadways, have no greater expectation…”
Chief Justice Roberts: “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?”
Mr. Dreeben: “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 and they would thereby gather…”
Here, Justice Samuel A. Alito Jr. jumped in to take issue with Mr. Dreeben’s FBI analogy. “The heart of the problem that’s presented by this case,” Justice Alito said, “is that in the pre-computer, pre-Internet age, much of the privacy – I would say most of the privacy – that people enjoyed was not the result of legal protections or constitutional protections. It was the result simply of the difficulty of traveling around and gathering up information.
“But with computers, it’s now so simple to amass an enormous amount of information about people that consists of things that could have been observed on the streets, information that was made available to the public… So, how do we deal with this? Do we just say, well, nothing is changed, so that all the information that people expose to the public is fair game? There is no search or seizure when that is obtained, because there isn’t a reasonable expectation of privacy? But isn’t there a real change in this regard?”
Justice Alito, a former federal prosecutor and probably the court’s most pro-prosecution justice, put his finger on the precise issue. “Reasonable expectation of privacy” is a phrase at the heart of the modern Fourth Amendment. By its text, the amendment only guarantees “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”
But the Supreme Court decades ago took a broader view, ruling in a landmark case concerning the placement of an electronic listening device on the outside of a public telephone booth that a search could be unreasonable even without a physical intrusion into a private place. “Wherever a man may be, he is entitled to know that he will remain free from unreasonable searches and seizures,” Justice Potter Stewart wrote for the court in Katz v. United States in 1967. Justice John M. Harlan’s concurring opinion provided the two-part definition of Fourth Amendment freedom that remains operative today: “First, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as ‘reasonable.’ ”
Exactly what “society” thinks about GPS monitoring, and how Supreme Court justices are supposed to know, then becomes the question. Twenty-eight years ago, in United States v. Knotts, the court upheld the government’s use of a beeper planted in a canister of drug-making chemicals and placed in the trunk of a car. “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another,” William H. Rehnquist, then an associate justice, wrote for the court.
Referring to that precedent, Chief Justice Roberts asked Mr. Dreeben: “You can see, though, can’t you, that 30 years ago if you asked people does it violate your privacy to be followed by a beeper, the police following you, you might get one answer, while today if you ask people does it violate your right to privacy to know that the police can have a record of every movement you made in the past month, they might see that differently?”
It’s an argument that works both ways, as Justice Alito made clear later when he commented to Stephen C. Leckar, the defendant’s lawyer: “You know, I don’t know what society expects, and I think it’s changing. Technology is changing people’s expectations of privacy. Suppose we look forward 10 years, and maybe 10 years from now, 90 percent of the population will be using social networking sites, and they will have, on average, 500 friends, and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones. What would the expectation of privacy be then?”
It’s always seemed to me that a “reasonable expectation of privacy” is little more than an expectation that at least five justices are prepared to recognize as reasonable with respect to their own privacy. For example, in a case in 2000, Bond v. United States, the court held that it violated the Fourth Amendment for a police officer to move down the aisle of a bus squeezing passengers’ overhead luggage to see if anything felt suspicious. The government had argued that a passenger had no reasonable expectation of privacy in luggage sitting exposed to public view. True, Chief Justice Rehnquist wrote, “a bus passenger clearly expects that his bag may be handled.” But “he does not expect that other passengers or bus employees will, as a matter of course, feel the bag in an exploratory manner” as the officer did in that case.
In reading that opinion, while I had trouble imagining the justices as passengers on an inter-city bus, I could certainly envision them stowing their soft-sided briefcases in the overhead compartments of planes, and I suspect they could imagine that scene quite vividly as well. I had a similar reaction to a 1998 decision, Knowles v. Iowa, in which the court unanimously invalidated a routine search of a car that had been stopped for speeding. Technically, this was not a “reasonable expectation” case, but rather a question of whether the police had conducted a valid “search incident to arrest” when they had not bothered to arrest the driver. It’s hardly unknown for a Supreme Court justice to be stopped for speeding.
These cases, I should emphasize, are exceptions. Fourth Amendment cases involving behavior with which the justices don’t instinctively identify, and in which the court rules reflexively for the government, are too numerous to go into here.
In any event, it’s not implausible to suppose that the outcome of the GPS case will depend in large part on the justices’ view of reasonable government behavior toward a citizenry that includes themselves. In fact, it’s implausible to suppose otherwise.
A few weeks ago, I flew home from Detroit after speaking there to a chapter of the American Constitution Society, a network of progressive law students and lawyers. (I serve on its national board.) It turned out that the Detroit airport is one of the locations at which the Transportation Security Administration is testing its new “intelligence-based” protocol, asking passengers questions about the reason for their travel.
What had I been doing in Detroit, the T.S.A. agent asked after he examined my boarding pass and driver’s license.
“Giving a speech.”
Who had I been speaking to?
“The American Constitution Society.”
What was my subject?
He never cracked a smile.