Children run down the steps of the Supreme Court building in Washington.… (Andrew Harrer / Bloomberg )
The Supreme Court justices, both conservative and liberal, voiced alarm on Tuesday at the idea of giving the government unlimited power to monitor people in public through the use of GPS devices or other tracking technology.
The comments came during an argument over whether FBI agents need a search warrant before they secretly install a GPS tracker on a suspect's car.
A government lawyer insisted that because no one has a right to privacy when they move on the public streets, the Constitution puts no limits on such high-tech surveillance.
It would "not be a search if you put a GPS device on all of our cars, monitored out movements for a month?" asked Chief Justice John G. Roberts Jr.
"The justices of this court?" said deputy Solicitor General Michael Dreeben.
Yes, Roberts said.
"Under our theory and under this court's case, the justices of this court when driving on public roadways have no greater expectation ... "
"So your answer is yes," Roberts interjected.
The chief justice said he understood the notion that agents could follow a person on foot or in a car, but "this seems dramatically different."
The new technology allows an agent to sit at in an office and monitor the movements of many persons, he said.
Justice Samuel A. Alito Jr. said he had the same concern. The "heart of the problem," he said, is that computers now permit the government to gather huge amounts of information on people and their activities. "Isn't there a real change" because of computers and surveillance technology, he asked.
Dreeben said no. It's "not a dramatic change," he said, in part because the government has no interest in tracking large numbers of citizens. He said the FBI uses GPS devices sparingly to monitor suspicious persons, including in terrorism cases.
But the justices kept returning to the same point. "Under the government's theory, any of us could be monitored whenever we leave home," said Justice Ruth Bader Ginsburg.
"If you win," said Justice Stephen G. Breyer, " it sounds like '1984,' " a reference to George Orwell's novel of a futuristic state with total surveillance of the populace by the government.
Despite the justices' worries over unlimited surveillance, the argument did not offer a strong clue as to how the court will rule.
Justices Antonin Scalia and Anthony M. Kennedy suggested they might opt for a ruling focusing on whether government agents could attach the GPS to a Jeep owned by Antoine Jones, a suspected drug dealer and the defendant in the case being considered by the court.
"That seems to me a trespass," Scalia said.
But such a ruling would not decide the broad question of whether the government can use tracking technology to follow a person for weeks without first obtaining a search warrant.
The U.S. court of appeals in Washington overturned Jones' drug conviction and ruled agents violated his rights under the 4th Amendment to be protected against "unreasonable searches."
Scalia said he agreed with the government's underlying theory. "Our cases say there is no search when you are moving in public," he said. There is no search unless "you establish an invasion of privacy," he added.
An attorney for Jones argued that most persons would think their privacy was invaded if they learned an agent had put a device on their car and monitored them for a month. "Our position is if you [agent] want to use a GPS device, you must get a [search] warrant," said Stephen Leckar, a Washington lawyer.