In light of a January, 2012 U.S. Supreme Court decision, the FBI announced a “sea change” in the way it operated by shutting off over 3,000 global positioning devices that the Bureau had been using to monitor suspects. General counsel for the FBI cited the need for clarity regarding acceptable use of GPS devices in light of the court’s opinion and did not want to risk having cases overturned because of Fourth Amendmentissues.
U.S. v. Jones
In U.S. v. Jones, the Supreme Court addressed the issue of whether police planting a GPS device on a suspect’s car and monitoring his movements constituted a search within the meaning of the Fourth Amendment’s prohibition against unreasonable searches and seizures.
The majority opinion, written by Justice Scalia, reasoned that the government committed a physical trespass on the defendant’s property to place the device on the defendant’s car so the police should have obtained a warrant before using the device. The court overturned Jones’ conviction.
The FBI finds the concurring opinion penned by Justice Alito particularly troublesome. Alito’s opinion did not rely on the fact that police officers physically went onto Jones’ property to place the GPS. device, instead focusing on the long-term nature of the monitoring. Alito opined that most people would believe that police monitoring their movements for a month would constitute an invasion of privacy. Alito suggested that the majority opinion would not protect people’s privacy in situations where authorities do not need to physically go onto a suspect’s property to place a monitoring device.
Law Enforcement Response
After shutting off the 3,000 GPS devices it had been using, the FBI looked to its general counsel for advice on how to properly use monitoring devices so as not to jeopardize investigations. The general counsel is currently in the process of addressing GPS use and other surveillance technologies, noting the difficulties inherent in the task because the court did not offer any “bright-line rules” about what is acceptable.
In contrast, civil liberties advocates championed the court’s decision as a necessary bulwark for privacy rights in the face of advancing technology. They also support the FBI offering advice to its agents about how to monitor suspects so as not to violate Fourth Amendment rights.