ASKED & ANSWERED: Alan Gershel

By Steve Thorpe Legal News The U.S. Supreme Court on Monday, Jan. 23, limited law enforcement's ability to track suspects with GPS devices, but left unresolved how far the government can go with new technologies to determine the location of its targets. In a ruling written by Justice Antonin Scalia in U.S. v. Jones, the high court concluded that using a GPS device to track suspects violates the protections of the Constitution's Fourth Amendment, rejecting the Obama administration's arguments that the practice does not amount to a search and does not require a warrant. Professor Alan Gershel of Thomas M. Cooley Law School served in the U.S. Attorney's Office, Eastern District of Michigan in Detroit for nearly 30 years. He was most recently chief of the Criminal Division from 1989-2008. Thorpe: What will be the "real world" effect of the ruling in terms of law enforcement and rights of suspects? Gershel: That's one of the unknowns in this case, because the issue was a narrow one for the majority. The issue was simply whether or not installing a GPS device on a car was a search according to the Fourth Amendment. The court said it was and the police have to get a warrant. The court has not addressed whether or not the surveillance itself would be a search. In some ways, the decision was a very narrow one, that is, whether the installation of the tracking device on the car was a search. Alito talks about this, saying that perhaps the larger and more serious question is whether the use of the GPS is a search under the Fourth Amendment. So the "real world effect" remains to be seen. Thorpe: Justices Samuel Alito and Antonin Scalia diverged in this decision. How unusual is that and does it signal anything more than a disagreement on this single issue? Gershel: I think it is of some significance. Justice Scalia, in his evaluation of whether or not this was a search, looked to what had been, in some ways, old property law. In other words, was there a physical trespass on a person's property? If the answer to that question is yes, then it's a Fourth Amendment issue. Some years ago, in a famous case called Katz v. United States, the FBI had placed microphones on a telephone booth to monitor conversations and they didn't have a warrant. The Supreme Court then analyzed the issue of whether there had been a physical trespass of the phone booth. They then backed away from that test and said that there are two "tests" to be applied: Whether or not a person has a subjective expectation of privacy and, if the person has that expectation, is it one that's reasonable? That case said that when a person went into a phone booth and tried to have a private conversation, it meets the new test of whether or not there's a search. So Justice Scalia talking about the physical trespass has, I think, created some confusion. If you look at Scalia's opinion, he's saying that in many ways Katz supplanted the old physical trespass test. So there is some confusion there as to what the law is going to require. Thorpe: There is speculation that convictions in some cases, including the murder of former Detroit journalist Chauncey Bailey in Oakland, Calif., may be overturned as a result of this decision. Do you see that happening? Gershel: The general rule is that a Fourth Amendment decision is, subject to some exceptions, applied retroactively to those convictions that are not yet final when the case was decided. Thus, it may impact those cases currently on appeal. Thorpe: The decision was fairly narrow. What other unresolved questions about location devices do you expect to be eventually addressed by the court? Gershel: I think that, in some ways, the case has opened a "Pandora's Box" of unanswered questions. Given the way that people are surveilled, everything from the ongoing tracking of your cell phone, the ubiquitousness of cameras, that privacy issues are going to come front and center, especially in regard to law enforcement taking advantage of those things. Using a cell phone to track a fugitive, for example, might be impacted by this decision. Look at the Google announcement in the wake of Jones. It requires all users to agree to a new privacy policy that will integrate user data across 60 Google products including Gmail, YouTube and search. The policy will also encompass information, including location data, collected on mobile devices. The majority in Jones only focused on the placement of a tracking device on a vehicle, a physical intrusion, which the court held was violative of the Fourth Amendment. It did not decide whether the surveillance itself was in violation of the Fourth Amendment. Justice Sotomayor, in her concurrence observed that physical intrusion is "now unnecessary to many forms of surveillance" and suggests that the third-party doctrine should be revisited, that is where you have no reasonable expectation of privacy in what you disclose to third parties. The Alito concurrence notes that "we need a law to make up for the protections that technological difficulties once provided." So, Google is announcing, one day after the Jones decision, that their "privacy policy" will be that they can share data across all of their products, with no ability to opt-out. Justice Sotomayor warned that "this approach is ill-suited for the digital age" and "I for one doubt that people would accept without complaint the warrantless disclosure of every Web site they had visited." Some form of congressional action appears necessary. Published: Mon, Jan 30, 2012

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