Supreme Court says police need warrant for GPS tracking

Justices decide firmly for privacy in their first ruling on government use of digital technology to monitor people.

by David G. Savage, Washington Bureau

The Supreme Court confronted for the first time the government's growing use of digital technology to monitor Americans and ruled strongly in favor of privacy.

The court said the Constitution generally barred the police from tracking an individual with a GPS device attached to a car unless they were issued a warrant from a judge in advance. But the ruling could limit a host of devices including surveillance cameras and cellphone tracking, legal experts said.

"I would guess every U.S. attorney's office in the country will be having a meeting to sort out what this means for their ongoing investigations," said Lior Strahilevitz, a University of Chicago expert on privacy and technology.

Even the justices who most often side with prosecutors rejected the government's view that Americans driving on public streets have waived their right to privacy and can be tracked and monitored at will. At least five justices appeared inclined, in the future, to go considerably beyond the physical intrusion involved in putting a GPS device on a car and rule that almost any long-term monitoring with a technological device could violate an individual's right to privacy.

Until now, prosecutors and police have believed as long as they were tracking a person who was out in public, they could use GPS devices, cellphone tracking, facial recognition cameras or computer data mining to gather a dossier on an individual without a search warrant. A majority of the justices aggressively rejected that idea Monday.

Although the justices agreed on the outcome, they quarreled over how to approach the issue and how far to go.

Five justices, led by Antonin Scalia, said the police violated the 4th Amendment's ban on unreasonable searches when they attached the device to a vehicle's bumper and monitored its movements.

Justice Samuel A. Alito Jr., whose opinion was joined by three others, cited "dramatic technological change" that has made it "relatively easy and cheap" for agents to secretly monitor people and gather huge amounts of information. Justice Sonia Sotomayor agreed, saying "awareness that the government may be watching chills" freedom.

None of the opinions set a strict limit on searches, but they signaled the court was determined to limit officials' power to monitor individuals, at least when there is no "probable cause" to believe the individuals have committed a crime.

The case before the court arose when Antoine Jones was charged with running a drug-dealing operation in the Washington area, based in part on data gathered from tracking his Jeep.

By a 9-0 vote, the justices ruled it was unconstitutional for the police to attach a small GPS device to his bumper and track his car for a month. The tracking data helped convict Jones of running a drug-dealing operation.

It is rare when a drug criminal wins in the conservative-leaning high court, but the GPS case concerned whether the modern state had unlimited power to track and monitor its citizens, evoking the specter of George Orwell's "1984."

"Society's expectation has been that law enforcement agents and others would not — and indeed, in the main, simply could not — secretly monitor and catalog every single movement of an individual's car for a very long period," Alito wrote, adding that such a search "surely crossed" the constitutional line. Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan agreed with Alito.

Sotomayor joined Scalia's majority opinion, but in a concurring opinion she made clear that she also agreed with much of Alito's broader view that the court must limit the government's use of tracking technology.

Scalia's view protects the "constitutional minimum" that the government may not trespass on private property, she wrote. But she said these devices could "make available at a relatively low cost such a substantial quantum of intimate information about any person who the government, in its unfettered discretion, chooses to track." Moreover, she said, "the government can store such records and efficiently mine them for information years into the future." The government cannot be free to use "a tool so amenable to misuse," she said, particularly in light of the 4th Amendment's aim "to curb arbitrary exercises of police power."

Scalia did not foreclose a future decision that tracking through "electronic means" is an "unconstitutional invasion of privacy," but said there was "no reason for rushing forward" to resolve that issue now. Chief Justice John G. Roberts Jr.and Justices Anthony M. Kennedyand Clarence Thomas also joined the opinion.

The ruling in U.S. vs. Jones left many questions unanswered. Alito and Sotomayor did not say when electronic tracking goes too far.

Privacy experts hailed the opinion as a welcome surprise and a good portent for the future.

It is "a landmark ruling in applying the 4th Amendment's protection to advances in surveillance technology," said Washington attorney Andrew Pincus. It is also "a significant rebuke to the government," which had argued that no privacy right was at stake.

Gregory Nojeim of the Center for Democracy & Technology agreed, saying the court "made it clear it would not allow advancing technology to erode the constitutional right of privacy." The decision may limit police from using cellphones to track people, he said, because "cellphone triangulation can be just as precise as GPS."

Strahilevitz said the court's opinion was most important for its rethinking of the right to privacy when balanced against public surveillance.

"Before today, if you asked whether the 4th Amendment puts some limit on the government's use of facial recognition cameras in the Chicago Loop or at the Los Angeles airport, you would say no. You had no expectation of privacy. After today, it is not so clear. The court said there is an expectation of privacy in public, and they see a danger in using technology to compile dossiers on persons."

The case also featured an unusual clash between Scalia and Alito over how to interpret the Constitution. Scalia relied on its original history and said the 4th Amendment was about protecting private property from official searches. Alito derided his focus on "18th century tort law" and said the court needed to protect citizens against "unreasonable searches" more broadly.

Scalia's opinion, if strictly followed, could limit the reach of the 4th Amendment, but Sotomayor agreed with Alito's view that it also extended to protecting privacy broadly.

http://www.latimes.com/news/nationworld/nation/la-na-court-gps-20120124,0,3298858,print.story

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Ohio wrestler Sweet Sexy Sensation gets 32 years for not telling sex partners about HIV status

CINCINNATI — A former professional wrestler was sentenced Monday to 32 years in prison for having sex with women without telling them he had tested positive for the virus that causes AIDS.

Andre Davis, 29, was sentenced in a Hamilton County court on 14 counts of felonious assault. Davis, who wrestled using stage names including Gangsta of Love and Sweet Sexy Sensation, was convicted in November.

Prosecutors had said Davis violated state law by not telling a dozen sex partners about his HIV status or lying to them.

Davis told the judge Monday that he was a “sex addict” and that his addiction grew worse when he lost his dream of becoming a professional wrestler after getting the HIV test results.

He said sex addiction is probably the worst addiction anyone could have.

“Drugs and alcohol are terrible, but sex is something everybody wants,” he said.

Davis, who said he didn't disclose his HIV test results because he didn't want his family to know, said he never intended to hurt anyone.

“I am not a monster,” he said.

Assistant prosecutor Amy Tranter had argued during trial that Davis should go to prison for a long time, saying the case was about his responsibility to tell the women his test results.

“He's a manipulative man and a liar,” Tranter said Monday.

Davis' attorney, Greg Cohen, had argued that the state law regarding HIV and felonious assault is poorly written because it doesn't require proof that there has been harm or an attempt to commit harm.

Cohen told the judge that his client was sorry for what he had done and that the women Davis slept with also had some responsibility for choosing to have unprotected sex.

The judge, citing medical privacy laws, had prohibited attorneys from bringing up whether any of the women was infected with the virus, which can be transmitted through unprotected sex.

The Cincinnati Enquirer has reported that World Wrestling Entertainment told Davis in July 2009 that it wouldn't hire him because he failed his physical and tested positive for HIV.

Cohen had noted during the trial that a company, not a doctor, told Davis that he was HIV-positive and that he did not think prosecutors could prove that Davis has HIV. But the state law requires those who test positive for HIV to inform their sex partners of that status and it was not necessary to prove that Davis is HIV-positive, Tranter said.

Cohen told The Associated Press that an appeal will be filed.

He said the constitutionality of the law “is probably going to be raised, and there are some legal issues regarding the admission of certain types of evidence.”

Davis, who could have received over 100 years in prison, faces similar charges in Warren County, north of Cincinnati.

http://www.washingtonpost.com/national/ohio-wrestler-sweet-sexy-sensation-gets-32-years-for-not-telling-sex-partners-about-hiv-status

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Texas

Seven habits of effective citizens

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