Justice Antonin Scalia (shooting range, Koch brothers meeting, opera, elephant) has a better solution: “Don't we have any legislatures out there that could stop this stuff?”
Stephen Leckar has 30 minutes to represent Jones, and he tries to advance a second argument in this case: The very act of installing the GPS device on a private vehicle constitutes a trespass. Earlier Kennedy—using his preferred early ‘80s terminology—had said he had “serious reservations about the way this beeper was installed.” But Alito wonders if a GPS affixed to your state-owned license plate represents a trespass. Scalia starts whooping. “I didn't own my license plate? I didn't know that. How do you know that? I paid for my license plate.” Scalia presses Leckar on what precisely has been seized here. When Leckar says his client’s data is seized, Scalia retorts, “Do you have any case involving seizure of data floating in the air as opposed to papers?”
Leckar says the government should not have the right “to take a device that enables them to engage in pervasive, limitless, cost-free surveillance.” But Kennedy stops him to ask how that’s any different from putting “30 deputies on this route and watch[ing] this person.” This leads Ginsburg to wonder how GPS tracking is any different than a surveillance camera. And Justice Elena Kagan (shooting range, opera, jury duty, shooting range) suggests that, “if somebody goes to London, almost every place that person goes there is a camera taking pictures.”
Leckar agrees: “It's pretty scary. I wouldn't want to live in London under those circumstances.” And Scalia sniffs: “Well, it must be unconstitutional if it's scary. I mean, what is it, the scary provision of what article?”
Breyer adds: “In fact, those cameras in London actually enabled them … to track the bomber who was going to blow up the airport in Glasgow and to stop him before he did.”
Leckar (recalculating) goes back to his physical trespass argument, which sends Breyer into something of a fit (for him, this means yelling, “Oh, my goodness!”). Then Sotomayor adds: “There are now satellites that look down and can hone in on your home on a block and in a neighborhood. I don't see that far in the future when those cameras are going to be able to show you the entire world and let you track somebody on the camera from place to place.”
Leckar tells Scalia that a GPS device without a warrant is like having “an uninvited stranger” in your car. Scalia asks again why this isn’t “precisely the kind of a problem that you should rely upon legislatures to take care of?” But Leckar is often unable to articulate a workable standard that could help the court resolve the differences between a one-day tail and one that lasts 30 days.
Dreeben begins his rebuttal this way: “Advancing technology cuts in two directions. … Today perhaps GPS can be portrayed as a 1984-type invasion, but as people use GPS in their lives and for other purposes, our expectations of privacy surrounding our location may also change.”
That’s enough for Kagan. “That seems too much to me,” she says. “I mean, if you think about this, and you think about a little robotic device following you around 24 hours a day any place you go that's not your home, reporting in all your movements to the police, to investigative authorities, the notion that we don't have an expectation of privacy in that, the notion that we don't think that our privacy interests would be violated by this robotic device, I'm not sure how one can say that!”
Kennedy wonders whether a neighbor could attach a GPS device to your car and monitor where you go without violating your privacy. Dreeben says maybe.