GPS and the Fourth Amendment: Beyond Form and Hyperbole

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.