This article continues the story of our previous piece:“Supreme Court To Decide 1984-Esque GPS Tracking Case.”
After the Supreme Court handed down a unanimous judgment in the important privacy case U.S. v. Jones last week, ruling that police use of a GPS tracking device constituted a search under the Fourth Amendment, some newspapers called its decision a victory for civil libertarians. “A set of overlapping opinions in the case collectively suggested that a majority of the justices are prepared to apply broad privacy principles to bring the Fourth Amendment’s ban on unreasonable searches into the digital age,” reported Adam Liptak in The New York Times. However, closer inspection of the decision and the reactions that followed it reveal that Jones may be more complicated than it appears. The case is notable because it is unusually ambiguous and may do less than it might seem to protect individual liberty. At the same time, it is possible that Jones will point the way to a new legal standard regarding privacy.
The facts of the case are these. Police suspected Antoine Jones, the owner of a Washington nightclub, of taking part in a cocaine-selling operation, so they placed a GPS device on his SUV, without a valid warrant. They tracked the vehicle for a month, then brought the evidence to court to help convict Jones of conspiring to sell cocaine, for which he was sentenced to life in prison. The United States Court of Appeals for the District of Columbia Circuit overturned his conviction, holding that the large amount of information collected violated the Fourth Amendment, which protects citizens from unreasonable government searches and seizures. The Supreme Court unanimously affirmed its decision, but on different grounds, with three separate opinions.
As widely varying responses in the blogosphere and mainstream media demonstrate, Jones is a difficult decision to interpret. Two groups of justices approached the case differently. Writing for a majority of five justices, Justice Antonin Scalia reasoned that the police installation of a GPS device on Jones’s private property constituted a search according to the definition of the Fourth Amendment as it was originally understood. “It is important to be clear about what occurred in this case,” Justice Scalia wrote. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Justice Scalia concluded that because the police trespass violated the original test in the Fourth Amendment, the Court could make a narrow decision and did not need to consider any additional legal standards in this particular case.
Justice Samuel Alito wrote a concurring opinion for a second group comprising four justices. He rejected Justice Scalia’s application of the Fourth Amendment trespass test as historically understood, arguing instead for a more modern interpretation based on the landmark 1967 Katz case’s more flexible “reasonable expectation of privacy” standard. Unlike Justice Scalia’s historic trespass standard, the “reasonable expectation” test may change with the times along with evolving technologies and shifting public attitudes.
George Washington University Professor of Law Orin Kerr offers an explanation for why Jones lacks clarity. “If anything is clear from the Supreme Court’s decision last week in United States v. Jones, it’s that not very much is clear from the Supreme Court’s decision in United States v. Jones. Reading over the commentary on Jones both in the print media and on blogs, I think I’ve seen just about every reaction (at least from enthusiasts of greater privacy, from which the commentariat is almost exclusively drawn),” he writes. Kerr gives two reasons for this confusion: (1) “Justice Scalia creates a new test for Fourth Amendment searches without being fully candid that he’s doing something quite new. Trespass has long been relevant to the Fourth Amendment search inquiry, to be sure. But the Court never embraced a straight trespass test…” and (2) “Justice Alito spends only a single paragraph of his 14-page opinion explaining how he would resolve the Jones case. Most of his opinion is spent criticizing Scalia’s test in great detail.” Kerr concludes that “these characteristics of the Jones opinions make the decision a Rorschach test.”
But for defenders of civil liberties, Jones may signal the beginning of a welcome new era in privacy law, the age of the “mosaic theory.” Kerr explains that in its earlier decision in the Jones case “the D.C. Circuit introduced a new ‘mosaic’ theory of the Fourth Amendment,” and “under that theory, whether government conduct is a search is measured not by whether an individual act is a search, but rather whether the collective sum of the different acts over time amount to a search.” Kerr writes that “the biggest surprise of Jones is that the mosaic theory lives.” He believes that the Jones opinions suggest that the “mosaic theory” “may have five votes” on the Supreme Court. One of them may be Justice Sonia Sotomayor, who, in a separate concurring opinion in Jones, took the most pro-privacy stance on the Court. “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,” she wrote. “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.” Kerr finds it fascinating “that the mosaic theory seems like a revolutionary new approach to Fourth Amendment law, and yet here 5 Justices seem ready to embrace it without even really recognizing how dramatic the change might be or what it might mean.” Kerr himself does not find “mosaic theory” persuasive.
I believe that neither the trespass standard by itself nor the “reasonable expectation” standard by itself will sufficiently protect privacy in today’s wired world. Problematic government attempts to collect information via technologies like the Internet often do not involve any trespass onto private property. In addition, the “reasonable expectation” standard is circular, and tends to erode over time. For example, public experience with the Internet reduces popular expectations of privacy, leaving citizens with diminishing protection against increasingly powerful technologies. As the New York Times recently reported, widespread private use of GPS devices also poses a problem. Whether “mosaic theory” in particular is adopted or not, believers in privacy should hope that in some form Sotomayor’s view eventually prevails over these more limited standards because they will not adequately protect civil liberties in our age of rapid technological change.