Update: The U.S. Supreme Court issued a decision in U.S. v. Jones on January 23. Read the analysis of that decision here. 

Both the Ohio Supreme Court and the U.S. Supreme Court are considering the same issue—is the warrantless placement of a GPS on a car and the resulting constant surveillance constitutional. Read the posts about the Ohio Supreme Court case, State v. Johnson, here and here.

The Ohio case was argued first, and at the time I expressed my surprise that the Ohio Supreme Court was hearing this issue at all, given the fact that the U.S. Supreme Court was planning to hear ( and has now heard) the same issue in United States v. Jones. The Ohio Supreme Court will be bound by any precedent that comes from that case.

 In both cases the government emphasized the fact that all the monitoring occurred only on public streets, where there is no expectation of privacy.  In both cases defense counsel argued that these devices are producing unlimited surveillance, unconstitutionally seizing data, and if the police need this data, they must get a warrant.

 Even though the arguments in both cases were similar, I was struck by how much less concerned over privacy issues a majority of the Ohio justices seemed to be than the U.S. Supreme Court justices were. (Justices Lanzinger, Pfeifer, and McGee Brown did express their concerns over this issue; the others did not).  The Ohio Supreme Court has never seemed to me to be overly protective of privacy, and has not taken the opportunity to find any additional protections for privacy under new judicial federalism principles. Personally, I place an extremely high value on privacy. I’m not sure my students feel the quite the same way. The internet and new technologies present new issues for privacy unlike what we’ve seen in the past. That fact was apparent from the questioning in the Jones case.

 Here’s a sampling of the U.S. Supreme Court justices’ privacy concerns in the Jones case.

 First thing out of the box, Chief Justice Roberts mused about the difference in the degree of intrusiveness between a beeper combined with visual surveillance and GPS surveillance. The former requires a lot of work, he observed, while with the latter the police “just sit back in the station and push a button whenever they want to find out where the car is.  They look at data from a month and find out everywhere it’s been in the past moth.  That seems to me dramatically different.”

 He said to the government’s lawyer, “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?”

 Later he asked whether the right to privacy should trump the fact that the movements that are under surveillance are public ones.

Justice Breyer seemed the most concerned about the privacy issues. He said, “if you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.  So if you win you suddenly produce what sounds like 1984…”  He asked “what a democratic society would look like if a large number of people did think the government was tracking their every movement over long periods of time.” And again—“…if you win this case then there is nothing to prevent the police or the government form monitoring 24 hours a day the public movement of every citizen of the United States.” Justice Paul Pfeifer expressed similar concerns in the Ohio case.

 Justice Sotomayor noted, “ what motivated the Fourth Amendment historically was the disapproval, the outrage, that our Founding Fathers experienced with general warrants that permitted police indiscriminately to investigate just on the basis of suspicion, not probable cause and to invade every possession that the individual had in search of a crime.” She then asked how this was different.

Justice Kagan commented  to the government’s lawyer, “… if you think about this, and you think about a little robotic device following you around 24 hours a day anyplace 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 — I’m not sure how one can say that.”

But what justices say during oral argument is by no means determinative of how they rule in the end.  We’ll have to wait and see. 

Read the complete oral argument transcript in the Jones case here. (The U.S. Supreme Court still bans cameras in the courtroom.  Arguments at the Supreme Court of Ohio can be watched in real time on streaming video.)