DAVID GREENE, HOST:
The U.S. Supreme Court is stepping - albeit gingerly - into the question of privacy in the information age. The court has ruled that police have to obtain a court-authorized warrant before they place a GPS device on a suspect's car. While the outcome was unanimous, the justices split three ways as to whether that decision went far enough. We'll have two reports, beginning with NPR's legal affairs correspondent Nina Totenberg.
NINA TOTENBERG, BYLINE: The court's unanimous ruling reversed the conviction of a Washington, D.C. nightclub owner sentenced to life in prison for drug trafficking. The justices agreed that his conviction could not stand because the FBI had placed a GPS tracking device on his jeep, and without a warrant, had tracked his every move for 28 days, using the resulting evidence to convict him.
But there the agreement stopped, with the justices divided on the legal rationale, and liberals and conservatives split in unusual ways. The lead opinion, written by Justice Antonin Scalia, said that because the tracking device was physically placed on the car, at a minimum, it was a search within the original meaning of the Constitution's ban on searches of property without a warrant.
Left unresolved were major issues involving cell phones, e-mails, tracking by remote device, even long-term tracking by aerial surveillance. Does the government need a warrant to get access to that sort of information, where there's been no physical intrusion on property? George Washington University professor Orrin Kerr says such questions remain unresolved.
ORRIN KERR: How the court is going to apply the Fourth Amendment going forward to new technology cases is going to be fascinating and unpredictable. This is not the usual 5-4 ideological split. This is nine justices trying to figure out how does the Fourth Amendment apply a new technological world, and the answers are really uncertain. It's going to be a wild ride.
TOTENBERG: Indeed, even yesterday's decision was a wild ride, with the liberal justice Sonia Sotomayor providing the fifth vote for the conservative Scalia's opinion, and the conservative Justice Samuel Alito, joined by three of the court's liberals, arguing for a broader rationale.
Bottom line? When you add up the views of all the justices, the clear suggestion is that this may be just the beginning of a broader warrant requirement in the digital age.
Sotomayor seemed to be the most willing to consider a new and more generous approach. She said that in an era when people have to provide extensive private information to e-mail and cell phone service providers just to perform mundane tasks, it may be time to reconsider past decisions that allow police access to such information without a warrant.
Justice Alito, while appearing to agree at least partially, said that in an era where dramatic technological change is the norm, it would be better for Congress to enact legislation. Congress, he said, is in a better position to gauge public attitudes, draw detailed lines and balance privacy and public safety interests.
Experts say that this is one area where Congress might, in fact, be able to overcome the usual partisan divide. Lawyer Andrew Pincus represents technology and privacy groups.
ANDREW PINCUS: You can look at this as an issue that unites some people on both ends of the spectrum, you know, some Tea Party people who worry about government intrusion into their lives, and some, you know, sort of more traditional progressives.
TOTENBERG: Nina Totenberg, NPR News, Washington. Transcript provided by NPR, Copyright NPR.
