Representing the Obama Administration during oral arguments (PDF) was Michael R. Dreeben, Deputy Solicitor General, who argued overall that citizens have no expectation of privacy outside their homes, and as such their movements can be monitored by police without a warrant when in public. Following is an excerpt of questions posed to Mr. Dreeben by Justice Ruth Bader Ginsburg, Justice Stephen G. Breyer, and Chief Justice John Roberts regarding the government's position that it should have blanket authority to use GPS devices to monitor the movements of whomever it wishes, and at any time. We have highlighted particularly noteworthy remarks:

JUSTICE GINSBURG: [T]he government's position would mean that any of us could be monitored whenever we leave our homes, so the only thing secure is the home. . . . [T]hat is the end point of your argument, that an electronic device, as long as it's not used inside the house, is okay.

MR. DREEBEN: Well, we are talking here about monitoring somebody's movements in public. We are not talking about monitoring their conversations, their telephone calls, the interior of their cars, their private letters or packages.

. . . 

MR. DREEBEN: I'm suggesting that the Court do the same thing that it did in Knotts. This case does not involve 24-hour surveillance of every citizen of the United States. It involves following one suspected drug dealer as to whom there was very strong suspicion, for a period of time that actually is less than a month [ . . . ]. 

CHIEF JUSTICE ROBERTS: Well, then . . . you're moving away from your argument. Your argument is, it doesn't depend how much suspicion you have, it doesn't depend on how urgent it is. Your argument is you can do it, period. You don't have to give any reason.  It doesn't have to be limited in any way, right?

MR. DREEBEN:  That is correct, Mr. Chief Justice..

Stephen C. Leckar, who represented the defendant Antoine Jones during oral arguments, stated to the Justices that "what happens is the police have the capacity with GPS to engage in grave abuse ... of individual and group liberties."

Among Mr. Leckar's key points was that the government, by conducting warrantless monitoring of Mr. Jones' automobile via placement of a GPS device on his vehicle, violated his possessory interests. In other words the government "seized" his property without a warrant, thus violating the Fourth Amendment which states, in part, that "the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." (emphasis ours)

Justice Antonin Scalia, however, differed with Mr. Leckar's position.

"You can say that there is a trespass for the purpose of obtaining information, which makes it a search," said Justice Scalia. "But I don't see how it's a seizure. A seizure, you have to bring something within your control. You have to stop the person or stop the vehicle. What has been seized when you -- when you slap a tracking device on a car?" 

"What has been seized is Antoine's data," Leckar responded. "Data is seized that is created by the GPS. Antoine Jones has the right, Your Honor, to control the use of his vehicle. And what the government did was surreptitiously deprive him" of such control. "What we have here is a live case of controversy in which Antoine Jones' control of his vehicle and his car was converted into an electronic GPS electronic transceiver serving the government."

The Ruling 

Writing the opinion of the court was Justice Antonin Scalia, who stated that the government must justify placing a GPS device on an individual's property, which is considered legally sacred. He furthermore stated that the digital age does not alter the fundamental concepts which embody the Fourth Amendment.

"The government physically occupied private property for the purpose of obtaining information," Scalia wrote in the ruling. "We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

While all the justices agreed that police violated the Fourth Amendment rights of the defendant, Antoine Jones, they differed on exactly why.

Justice Samuel Alito, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan joined, stated in a concurring opinion that the majority's rationale for what constituted a "trespass" was "unwise" and "artificial." Alito stated that the authors of the Bill of Rights in 1791 could not have imagined the existence of GPS in 2011, and that therefore it is not possible to apply an 18th century provision to a twenty-first century technological context. As such, Alito argued, the ruling in this case should have been based upon whether a suspect has a reasonable expectation of privacy that could be violated by the use of a modern GPS device.

Implications 

Prior to the Supreme Court's ruling, Norman L. Reimer, Executive Director of the National Association of Criminal Defense Lawyers, expressed the following sentiments in considering the implications Jones could have upon American society and liberties: 

In this case, the Supreme Court will define a key aspect of American life for generations to come -- whether privacy can survive the technological advances of the digital age. Put more bluntly, does the government have the unilateral right to track every person's comings and goings, necessarily revealing everything from religious and political associations to consultations with attorneys and physicians, without any limitation and without any showing of suspected criminality? . . . Absent a high court finding of a warrant requirement for this type of surveillance, there is simply no way for the innocent and law-abiding to disable this new feature of the brave new world of American life and law enforcement.

With this ruling, the Supreme Court has sent a clear and unambiguous message: the Fourth Amendment, and the natural rights to privacy which it affirms, is American holy ground which police cannot blatantly set foot upon merely because technological advances afford them greater convenience to do so.

In the past couple of years courts all over the country have been forced toconfront the friction between evolving technology and civil rights, particularly privacy rights as they relate to mobile devices, tablets, and laptops. As the courts struggle to interpret (with many conflicting outcomes) constitutional bearings on data storage and communication technology, a new question emerges: does the Fifth Amendment protect individuals from having to surrender device passwords to police?

Consider a recent case in Colorado, where police couldn't access defendant Ramona Fricosu's laptop files because the data was encrypted. While the seizure of the laptop itself occurred per a warrant, prosecutors are seeking a court order compelling Fricosu to provide the encryption password so as to be able to access the data on the laptop.

Civil liberties groups say the extremely rare move could test the very fabric of the Fifth Amendment protections against self-incrimination in criminal cases.

"If the government wins in this case, and they are able to force her to decrypt the laptop ... it's the erosion of the Fifth Amendment," said Hanni Fakhoury, an attorney for the Electronic Frontier Foundation, which filed a brief in support of Fricosu. "It's seeing the Fifth Amendment not keeping up with advances in technology."

On the other hand, prosecutors counter that modern data encryption methods make it extremely difficult, if not impossible, for law enforcement officials to access key evidence stored in computer hard drives without the passwords.

"Failing to compel Ms. Fricosu," Assistant U.S. Attorney Patricia Davies wrote in a court filing, "amounts to a concession to her and potential criminals (be it in child exploitation, national security, terrorism, financial crimes or drug trafficking cases) that encrypting all inculpatory digital evidence will serve to defeat the efforts of law enforcement officers ... and thus make their prosecution impossible."

While there is the "foregone conclusion" doctrine, which states that providing information is not subject to the Fifth Amendment privilege against self-incrimination when the existence and location of information are known to the government, and the act of providing the information adds little or nothing to the government's case (see Fisher v. United States, 425 U.S. 391 (1976)), courts have concluded that defendants are protected under the Fifth Amendment from providing encryption passwords because doing so would be an admission that they had possession of, control over, and access to the data (see United States v. Hubbell, 530 U.S. 27 (2000)). As such, the very act of producing an access key is testimonial in nature, and therefore self-incriminating.