As Circuits split on the subject in decisions that reflects as much about their comprehension of modern technology as their concern for the Fourth Amendment, there was fear and trepedation at the idea of our beloved Supreme Court eventually making decision.  That day is soon to come, as the Court considers United States v. Jones this coming November.

In his  New York Times Sidebar column, Adam Liptak notes how different courts have treated GPS tracking:

In April, Judge Diane P. Wood of the federal appeals court in Chicago wrote that surveillance using global positioning system devices would “make the system that George Orwell depicted in his famous novel, ‘1984,’ seem clumsy.” In a similar case last year, Chief Judge Alex Kozinski of the federal appeals court in San Francisco wrote that “1984 may have come a bit later than predicted, but it’s here at last.”

Last month, Judge Nicholas G. Garaufis of the Federal District Court in Brooklyn turned down a government request for 113 days of location data from cellphone towers, citing “Orwellian intrusion” and saying the courts must “begin to address whether revolutionary changes in technology require changes to existing Fourth Amendment doctrine.”

Who doesn’t love analogies to Orwell’s 1984?  Yet this doesn’t really help much in addressing the fact that technology has made things possible that no founding father could ever dream of, and no bootleg-hating justice considered as he wittled away our rights to make exceptions.  But it’s all come home to roost, on virtual steroids.

The Jones case (shockingly) arises from a government screw-up.

The case . . . arose from the investigation of the owner of a Washington nightclub, Antoine Jones, who was suspected of being part of a cocaine-selling operation. Apparently out of caution, given the unsettled state of the law, prosecutors obtained a warrant allowing the police to place a tracking device on Mr. Jones’s Jeep Grand Cherokee. The warrant required them to do so within 10 days and within the District of Columbia. The police did not install the device until 11 days later, and they did it in Maryland.

The problem is that GPS tracking, unlike anything man was capable of before, capable of by his own observation, nails every movement bar none to so specific a degree as to know details with such intimacy that a spouse would be jealous, and can continue as long as desired.  The GPS never gets tired, needs a day off or has to go to the bathroom.

But this isn’t just about GPS, but a transitional case addressing what a bunch of justices whose understanding of both existing technology and whatever will be invented tomorrow will be tested.  Just as the spectacularly bad decision from 1925 in  Carroll v. United States brought us from the horse and buggy era to the automobile exception, and unintentionally paved the road for an ongoing and disconnected stream of exceptions to the Fourth Amendment that have reduced it to meaninglessness today, the Jones case has the potential to create a framework for technology as yet undreamed of that will control the extent of intrusion in our lives going forward.

In other words, the Supremes are staring 1984 in the face and will have the opportunity to draw a line and say “no,” that will not be our future in light of the amazing potential of technology.  Or pull a Carroll, letting the utility of a particular piece of tech and a desired immediate outcome produce a rationale that will be extended, step by step, iPhone by iPad, until privacy has been completely and irrevocably eviscerated.

Ironically, the government’s argument against the need for a warrant for GPS surveillance relies on primitive technology used in United States v. Knotts, decided 30 years ago,

In the Jones case, the government argued in a brief to the Supreme Court that the Knotts case disapproved of only “widespread searches or seizures that are conducted without individualized suspicion.”

The brief added: “Law enforcement has not abused GPS technology. No evidence exists of widespread, suspicionless GPS monitoring.” On the other hand, the brief said, requiring a warrant to attach a GPS device to a suspect’s car “would seriously impede the government’s ability to investigate leads and tips on drug trafficking, terrorism and other crimes.”

“Trust us, we would never abuse our power,” does not seem like a principled approach for a court, but if the government can get this past the Supremes (and everybody decides to forget about the widepread illegal wiretapping over the past few years where the government proved conclusively that it can’t be trusted), the use of technology in the gentle hands of our benign and loving government, much like Big Brother, will be unstoppable.  The “trust us” argument has no limits.

The question of whether the Supreme Court has both the depth of understanding of the nightmare potential technology brings to the Fourth Amendment, as well as the long-sightedness to realize that it’s decision will be extrapolated to all manner of technology that we have yet to conceive of, is about as scary as it comes.  Interestingly, one of the justices who may well see the long term view best is Antonin Scalia.

A decade ago, the Supreme Court ruled that the police needed a warrant to use thermal imaging technology to measure heat emanating from a home. The sanctity of the home is at the core of what the Fourth Amendment protects, Justice Antonin Scalia explained, and the technology was not in widespread use.

In general, though, Justice Scalia observed, “it would be foolish to contend that the degree of privacy secured to citizens by the Fourth Amendment has been entirely unaffected by the advance of technology.”

It would be foolish indeed.