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The Supreme Court is set to hear arguments tomorrow in the case of United States v. Jones. Jones is about nightclub owner Antoine Jones, whose 2008 conviction for drug trafficking (which carried a life sentence) was overturned by the D.C.’s 9th Circuit Court of Appeals last year after justices decided he was tracked illegally by the Metropolitan Police Department.

While MPD had a warrant to put a GPS tracker on Jones’ car when it was in D.C., they opted to let the warrant expire, which effectively meant they tracked him without a warrant. He was then tracked 24 hours a day for a month.

The decision in this case will set precedent for whether it’s okay for police to GPS track a suspect without a warrant, and whether they violate the Fourth Amendment of the Constitution (protection from unreasonable search and seizure) by doing so.

Libertarian privacy expert and Cato Institute research fellow Julian Sanchez talked to me about the case last month. Sanchez, who says it’s “incredibly insane” that the conviction garnered Jones a life in prison sentence, adds that Fourth Amendment protections are most frequently “whittled down” by drug cases, because they are consensual criminal transactions. That is, the victim/buyer has no incentive to give up information.

“The only way you can catch people who are involved in consensual crimes is by pushing the boundaries of privacy,” Sanchez says. Still, he adds, “[The Fourth Amendment] wasn’t just to protect privacy, but also to make it difficult to criminalize things. So it’s not surprising that it’s been eroded to criminalize certain things.”

But when the D.C. Circuit Court arrived at its decision to overturn Jones’ conviction, it “cross-applied precedent” from a completely different area of the law, according to Sanchez. Which may get them into trouble. The court took the “mosaic theory,” which has traditionally been applied to Freedom of Information Act requests, and used it to take Jones’ side. This kind of “novel” approach to judicial rule-making is traditionally frowned upon.

The mosaic theory holds that using technology to track every moment in public—-say, buying groceries, driving down 395, meeting a friend for a drink, etc—-can add up to a violation of privacy since no one expects someone to track all of their public movements.

“The heart of this is that if your standard is ‘what level of privacy do people reasonably expect?’ then you have to grapple with the fact that people’s expectations are complicated,” Sanchez says. “They expect to be seen, but not that any one person is following them around every day, all day, for a month.”

The difference, then, is technology. Assigning a cop to tail every suspected criminal isn’t physically possible, but that’s no longer a problem with current trackers. “These devices—-you put it on a car and leave it alone and check back in a month or two months or a year and have a record of where that person has been,” Sanchez says. “Is that something the Fourth Amendment would permit? And you intuitively want to say ‘no.’ “

So which way will the court go on this? Sanchez says it’s difficult to say. Most likely, he thinks they’ll avoid making a big decision like supporting the use of the mosaic theory in this case, since it opens up a whole bunch of other issues.

“If I had to bet, I’d guess that they’d try and basically lean on Kyllo,” he says. Kyllo v. United States was a case where the Supreme Court held that it was sometimes unreasonable to use technology without a warrant to discover criminal activity even if that information could be gleaned through human observaiton.  “When [technology] becomes an independent method, that kind of creates a different category,” Sanchez says.
The court is scheduled to hear the case tomorrow at 10 a.m.

Photo by TexasGOPVote.com via Flickr/Creative Commons Attribution Generic 2.0 License