http://www.supremecourt.gov/oral_arg...ts/10-1259.pdf
JUSTICE ALITO: Well, that seems to get -to me to get to what's really
involved here, the issue of whether there is a technical trespass or
not is potentially a ground for deciding this particular case, but it
seems to me the heart of the problem that's presented by this case and
will be presented by other cases involving new technology is that in
the pre-computer, pre-Internet age much of the privacy -- I would say
most of the privacy -- that people enjoyed was
not the result of legal protections or constitutional protections; it
was the result simply of the difficulty of traveling around and
gathering up information.
But with computers, it's now so simple to amass an enormous amount of
information about people that consists of things that could have been
observed on the streets, information that was made available to the
public. If -- if this case is decided on the ground that there was a
technical trespass, I don't have much doubt that in the near future it
will be probable -- I think it's possible now in many instances -- for
law enforcement to monitor people's movements on -- on public streets
without committing a technical trespass.
So how do we deal with this? Do we just say, well, nothing is changed,
so that all the information that people expose to the public -- is, is
fair game? There is no -- there is no search or seizure when that is
-- when that is obtained, because there isn't a reasonable expectation
of privacy? But isn't there a real change in -- in this regard?
.. . .
JUSTICE BREYER: But what -- but what is the question that I think
people are driving at, at least as I understand it and certainly share
the concern, is that if you win this case then there is nothing to
prevent the police or the government ffrom monitoring 24 hours a day
the public movement of every citizen of the United States. And -- and
the difference between the monitoring and what happened in the past is
memories are fallible, computers aren't.
And no one, at least very rarely, sends human beings to follow people
24 hours a day. That occasionally happens. But with the machines, you
can. So if you win, you suddenly produce what sounds like 1984 from
their brief.
.. . .
JUSTICE BREYER: . . . Start with the other end. Start, what would a
democratic society look like if a large number of people did think
that the government was tracking their every movement over long
periods of time. And once you reject that, you have to have a reason
under the Fourth Amendment and a principle. And what I'm looking for
is the reason and the principle that would reject that, but wouldn't
also reject 24 hours a day for 28 days. Do you see where I'm -- that's
what I'm listening very hard to find.
.. . .
JUSTICE SOTOMAYOR: The GPS technology today is limited only by the
cost of the instrument, which frankly right now is so small that it
wouldn't take that much of a budget, local budget, to place a GPS on
every car in the nation.
.. . .
JUSTICE ALITO: You know, I don't know what society expects and I think
it's changing. Technology is changing people's expectations of
privacy. Suppose we look forward 10 years, and maybe 10 years from
now 90 percent of the population will be using social networking sites
and they will have on average 500 friends and they will have allowed
their friends to monitor their location 24 hours a day, 365 days a
year, through the use of their cell phones. Then -- what would the
expectation of privacy be then?
.. . .
JUSTICE SOTOMAYOR: Do you have any idea of how many GPS devices are
being used by Federal Government agencies and State law enforcement
officials?
MR. DREEBEN: The Federal Government, I can speak to, and it's in the
low thousands annually. It's not a massive universal use of an
investigative technique. The FBI requires that there be some
reasonable basis for using GPS before it installs it. And as a result,
this is a technique that basically supplements visual surveillance
rather than supplanting it all together.
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