GPS tracking case has left unsettled questions
Some courts have agreed that warrantless GPS tracking prior to the Jones case was acceptable, though that idea isn’t universally accepted.
In throwing out evidence against three brothers charged in a wave of pharmacy burglaries, a three-judge panel of the 3rd U.S. Circuit Court of Appeals ruled last year that police were required to get a warrant before using a GPS device in 2010, rejecting prosecutors’ "good faith" argument. The entire court reheard the case May 28.
Courts have been similarly divided on whether car passengers, or nonowners, have legal authority to challenge GPS evidence against them.
The Jones decision has also been invoked in court disputes over the NSA’s telephone records collection. A federal judge in Washington cited the opinions of Alito and Sotomayor in the Jones case to find that telephone users have a reasonable expectation of privacy and to declare the NSA program likely unconstitutional. A federal judge in New York rejected a plea from civil libertarians to invoke those same opinions and instead upheld the NSA program.
Police and judges also are wrestling with the privacy implications of other modern forms of surveillance. In Washington state, for example, privacy advocates are arguing that the Jones case requires a court to throw out warrantless video surveillance captured by a pole camera left by police for a month outside a defendant’s house in a drugs and weapons case.
In one way or another, the questions will likely come before the Supreme Court again, said Brian Hauss, an American Civil Liberties Union lawyer. Police should have clear rules that apply across multiple technologies, he said.
"Right now, they’re operating in an area of total confusion without significant judicial checks on their authority."