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Privacy cases slated for U.S. Supreme Court's new term

U.S. Supreme Court begins its fall term by refusing to hear a case involving a warrantless search of a cell phone, but other privacy-related cases are in the queue.

When police in the District of Columbia decided to use an automobile GPS bug to surreptitiously track the movements of Antoine Jones, a suspected cocaine dealer, they set in motion a legal challenge that will end before the U.S. Supreme Court.

The court's fall term, which begins today, includes a review of Jones' attempt to overturn his conviction. His attorneys argue that such precise turn-by-turn tracking requires a search warrant signed by a judge--a step that D.C. police chose not to take.

It's one of a handful of technology cases that, in addition to a high-profile challenge to President Obama's controversial health care law, are likely to be decided by next summer.

U.S. Supreme Court
Declan McCullagh

The high court began its new term today by declining to hear another warrantless electronic search case: were police in California required to seek a search warrant before perusing the contents of a suspect's cell phone approximately 90 minutes after his arrest?

In that case, People v. Gregory Diaz, the Supreme Court of California ruled that the Ventura County Sheriff's Department did not need a warrant to look through a cell phone's text message folder, even though the search did not take place immediately after the defendant was arrested.

A similar principle--when police must obtain a warrant--is central to the Jones GPS tracking case. (Oral arguments have been set for next month.)

"It goes to the central question of the application of the Fourth Amendment in the modern era," says Marc Rotenberg, executive director of the Electronic Privacy Information Center, which filed an amicus brief (PDF) in the case.

In August 2010, the U.S. Court of Appeals for the District of Columbia tossed out (PDF) Jones' conviction "because it was obtained with evidence procured in violation of the Fourth Amendment."

"A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain 'disconnected and anonymous,'" circuit judge Douglas Ginsburg wrote.

Even though police are planting GPS bugs on Americans' vehicles thousands of times a year, the legal ground rules remain unclear, and lower courts have split on whether a warrant should be required. Once relegated, because of their cost, to the realm of what spy agencies could afford, GPS tracking devices now are readily available to jealous spouses, private investigators, and local police departments for just a few hundred dollars.

A brief (PDF) submitted by the Justice Department asking the justices to hear the case says that no American has "a reasonable expectation of privacy in his movements from one place to another," even if technological advancements "allow police to observe this public information more efficiently."

"It's been 1983 since the Supreme Court considered the question of tracking a vehicle in public," says Jim Dempsey, vice president of the Center for Democracy and Technology, which also filed a brief (PDF) in the case today. It was also signed by the Electronic Frontier Foundation, University of Pennsylvania professor Matt Blaze, and Roger Easton, the scientist who was the principal designer of what became the GPS, or Global Positioning System.

The focus of CDT's brief, Dempsey says, is "on showing how fundamentally different GPS is from bumper beepers and fundamentally different in ways that require a different outcome in this case." The Supreme Court's precedents from the 1980s did allow warrantless use of a crude tracking device called a bumper beeper, but this is the first time the court is confronting whether GPS tracking is equivalent.

Another case the Supreme Court is scheduled to hear, FAA v. Cooper, asks whether mental and emotional injuries qualify as "damages" under the Privacy Act. A pilot named Stanmore Cooper disclosed his HIV-positive status to the Social Security Administration, which shared it with the Federal Aviation Administration, an act that Cooper says caused him "mental anguish" and violated the Privacy Act.

"I'm not sure whether the court will go so far as to include mental and emotional damages in the definition," says Ryan Calo, director of Stanford University's Center for Internet and Society. "I think they should." (Calo has written an essay arguing for a limited expansion of the concept of privacy harm.)

In addition, the Supreme Court will hear FCC vs. Fox Television Stations, which will test whether the remarkable technological changes of the last 33 years have changed the way the Federal Communications Commission's broadcast censorship should work.

Last year, a federal appeals court in New York ruled that technological advances--YouTube, Facebook, and Twitter were cited--have ripped away the underpinnings of the FCC's "indecency" regulations. It ruled against the government agency on First Amendment grounds.