JURIST Guest Columnist Luke Milligan of the University of Louisville Brandeis School of Law says the debate over warrantless GPS surveillance has been distracted by form and hyperbole, and that because this constitutional question is open, judges will take a pragmatic approach…

For years the public has debated the Fourth Amendment implications of warrantless GPS surveillance. Yet hardly an episode of discourse on the subject has passed without the audience being prodded, from the right, by formalism, and, from the left, by hyperbole. Formalistic moves in the GPS debate have generally hinged on canons of constitutional interpretation (originalism) and lines of Supreme Court precedent (United States v. Knotts). Hyperbole, for its part, emerges in noisy predictions of totalitarianism and gratuitous footnotes to George Orwell’s 1984.

Form and hyperbole are, of course, different types of devices (one distinction, among many, is that the first seeks to constrain the passions while the second to stoke them). The devices nonetheless share the common objective to distract listeners from pragmatic inquiry. A pragmatic discourse, in my mind, strives for three things: the examination of conventional wisdom, the sorting of the useless from the useful, and the reformation of conventional wisdom through the effective communication of findings. Formalism and hyperbole, actively conflating the useless and useful, serve as drags on pragmatic inquiry.

So let us resist the calls of form and hyperbole as we study the particular issue at hand: the constitutionality of warrantless GPS surveillance (or, more precisely, whether government GPS surveillance is a “search” pursuant to the Fourth Amendment). A pragmatic analysis of this issue turns on two straightforward questions: (1) What are the societal costs of warrantless GPS surveillance programs?; and (2) Are these costs outweighed by the societal benefits of such programs?

It is important to emphasize that only a subset of government GPS surveillance is at issue in this debate. No matter the outcome, lawful channels for GPS surveillance will remain available to police. After all, law enforcement will continue to be able to obtain warrants for GPS surveillance based on probable cause. Moreover, police will be able to bypass a warrant requirement whenever “exigent circumstances” arise. A pragmatic analysis of warrantless GPS surveillance (and, more specifically, its concomitant review of costs and benefits) must be therefore confined to those situations where police (1) lack probable cause; or (2) have probable cause but lack an exigency or a warrant.

We begin our pragmatic inquiry with an assessment of costs. While individual value-schemes of course differ across any population, it is undeniable that the vast majority of Americans share a deep commitment to certain “foundational” values like democracy, human dignity, autonomy, and open markets. Many of these foundational values, it seems clear, would be weakened by programs of warrantless GPS surveillance. As recently illustrated by the New York Court of Appeals, such programs permit government officials to arbitrarily track and record “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” This type of surveillance, the Court observed, reveals not only “where we go, but by easy reference our associations-political, religious, amicable and amorous.”

The imposition of a warrant requirement will not by any means immunize our foundational values from GPS technologies. GPS surveillance with a warrant or exigency will still track, for instance, stays at by-the-hour motels. But this claim is beside the point. Remember that the pragmatist cares not about immunity but rather the marginal preservation assured by a warrant requirement. And warrants, as it turns out, do much to preserve our foundational values. Warrants matter because they require police to reflect, before a particular instance of surveillance, on how any articulated need for such surveillance will be eventually assessed by an external actor (a judge). In effect, warrants cast (if only temporarily) police officers in the role of a neutral arbiter. Programs of warrantless GPS surveillance, to the contrary, permit police (at least when it comes to GPS) to remain comfortably in the role of law enforcer. This invariably leads to more extensive GPS surveillance, and, in the end, a far greater erosion of our shared value-scheme. Of course some will no doubt respond that this weakening could be otherwise avoided by legislation regulating GPS. To this I would add that such weakening could be equally avoided if law enforcement voluntarily elected to not use GPS, or, for that matter, if GPS technology were impaired by a world war or economic depression. But why would a pragmatist, facing this constitutional question at a time where judicial regulation of GPS poses no serious threat to the perception of a constrained judiciary (see discussion below), simply abstain and hope for the best?

The second and final leg of our pragmatic inquiry relates to the societal benefits of warrantless GPS surveillance. Our analysis of benefits, like costs, is limited to that subset of GPS surveillance where there is (1) no probable cause or (2) probable cause but no exigency or warrant. How will GPS surveillance during these limited periods affect our crime rate, our crime detection rate, our apprehension rate, and the amount of government resources consumed by law enforcement (as relatively inexpensive GPS technology will surely present itself as an attractive substitute to human labor)? While neither I nor anyone else can give definitive answers to these questions, my sense is that the gains from warrantless GPS surveillance will be quite small. Visual surveillance, for instance, provides a decent substitute for GPS during the relatively small pre-warrant (and non-exigent) investigatory window. Even assuming large efficiencies from warrantless GPS, I would still likely find these benefits outweighed by the expected costs of warrantless GPS surveillance. Most of us, after all, are too risk-averse to pay for efficiency gains-even large ones-with the certain weakening of foundational values such as human dignity, autonomy, democracy, and open markets.

Now it is easy for me, writing as a citizen, to challenge the uses of formalism in our public discourse. But when one is cast in the role of “judge,” pragmatic analyses become necessarily more layered. One of our prevailing narratives, after all, holds that we, the people, bestow jurists with power and political insulation; and in exchange we ask that their decision-making be constrained (either by legislatures, canons of interpretation, or “binding” judicial decisions). Because our society values the perception of judicial constraint, and because such perception is strengthened by adjudicative formalism, a judge’s flagrant disregard of form can be expensive for society. The pragmatic judge must therefore incorporate the costs of being perceived as disregarding form into any instance of pragmatic adjudication. On the other hand, the societal costs of purging hyperbole from adjudication are hardly obvious and most likely non-existent. Thus, hyperbole should be resisted at all turns by the pragmatic jurist.

When it comes to the GPS issue, any societal costs ascribed to the perceived disregard of form will be de minimus. After all, Supreme Court case law on this issue is, by any fair assessment, ambiguous. On one hand, the “beeper” tracking device at issue in Knotts can be reasonably analogized to GPS. But, on the other hand, the Knotts majority explicitly reserved the right to revisit the issue if warrantless tracking resulted in 24-hour “dragnet-type” surveillance. The platitudes of Katz, Kyllo and, most recently, City of Ontario v. Quon only muddy the water. And the various canons of interpretation, for their part, can cut nearly any way on this issue. The indeterminacy of the GPS question has been validated by the state and lower federal courts: The 7th, 8th, and 9th Circuits, plus the supreme courts of Wisconsin and Nevada have viewed such programs as constitutional; while the D.C. Circuit and the high courts of New York, Massachusetts, and Washington have held them to be unconstitutional.

All jurists are pragmatists at their core. By this I mean that every prevailing decision, standard, doctrine, and canon of interpretation has “paid its own way” in the ruling judge’s mind. Because the constitutional question regarding warrantless GPS surveillance is unavoidably open, judges will not expect any societal costs to flow from a perceived disregard of form. Relieved of the weight of form, jurists will dispose of this issue based on their sincere assessment of the societal costs and benefits of the underlying concrete policy: warrantless GPS surveillance.

Indeterminate constitutional questions like this reveal our judges’ values and risk assessments. While these revelations will be of great interest to the Court-watcher and legislator alike, nothing comes for free. Revelations, after all, appear to only those who can see beyond form and hyperbole.

Professor Milligan teaches Criminal Procedure, Criminal Law, and Jurisprudence at the Louis D. Brandeis School of Law.

Suggested citation: Luke Milligan, GPS and the Fourth Amendment: Beyond Form and Hyperbole, JURIST – Forum, Apr. 6, 2011, http://jurist.org/forum/2011/04/gps-surveillance-and-the-fourth-amendment-beyond-form-and-hyperbole.php.