Today, the U. S. Supreme Court issued an opinion finding the attachment of a GPS tracking device to the underside of a car a violation of the Fourth Amendment. Read the full opinion
here.
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| Justice Alito |
In
U. S. v. Jones, a combined task force of D.C. cops and the FBI attached a GPS device to the underside of a car driven exclusively by the target of a drug investigation. The task force obtained a warrant, but failed to install the GPS device within the geographical and time limitations of the warrant. The defendant moved to exclude the 28 days' worth of tracking information obtained from the vehicle (the task force even had to change the batteries out once during the 28 days it was on the car). Ultimately, the case made its way to the Supreme Court where Justice Scalia, writing for the court in a unanimous opinion, held the search violated the Fourth Amendment.Two concurring opinions were written by Justices Sotomayor and Alito. If you are like me, you remember vaguely what Scalia looks like, and you know that Sotomayor is a woman, but you draw a total blank on Alito.
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| The GPS device used in U.S. v. Jones |
The idea that law enforcement cannot just walk up to your car in a public parking lot and attach a GPS tracker without a warrant may seem like a no-brainer to most people; however, until today, it was an issue of much debate amongst legal scholars and in the courts. The Fourth Amendment provides that
“[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.”
Basically, "Come back with a warrant!" Seriously, search and seizure law is much more complicated than that, but the law as it has developed through Supreme Court rulings at its core is simple: the government must get a warrant to access your person, your house, your papers or effects in which you have a reasonable expectation of privacy. A good example is your trash. Once you put your garbage can to the street for pickup, the police can "pull" it, because you no longer have a reasonable expectation of privacy to your trash. Conversely, the police cannot search your home without a warrant because you do have a reasonable expectation of privacy to your home.
The interesting part of the opinion today is not Scalia and Alito's back and forth about strict construction, a carriage and a coachman. Really, we all get it: there's been a few technological advances since the Fourth Amendment was adopted. The point is that when the government's actions intrude on a person's "reasonable expectation of privacy," a Fourth Amendment violation has occurred.
For me, the best part of this opinion is concurring Justice Sotomayor's ruminations about the train wreck of epic proportions looming just over the horizon in our jurisprudence: the inevitable clash of privacy rights and the ever decreasing privacy to which those of us who live "on the grid" consent in our everyday lives.
Justice Sotomayor writes that
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| Justice Sotomayor |
I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on....More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties....This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as Justice Alito notes, some people may find the “tradeoff ” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.
Now, that's something to think about.
Julie
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