YourABA: April 2014
YourABA April 2014 Masthead

In wake of ‘U.S. v. Jones,’ 4th Amendment concerns with law enforcement’s high-tech capabilities emerge

In order to protect and defend, police may choose to closely follow certain individuals suspected of breaking the law. But police departments and the lawyers who represent them are advised to also keep track of where the law is headed, according to legal experts at a recent American Bar Association webinar, “Police, Privacy and New Technologies.”

Jennifer Lynch, senior staff attorney at the Electronic Frontier Foundation, views the privacy desires of citizens and the government’s desire to find information as a delicate balancing act.

The Fourth Amendment to the U.S. Constitution protects people from unreasonable searches and seizures and requires probable cause in order to obtain a warrant to conduct a lawful search. As local law enforcement agents are equipped with global positioning systems, sophisticated data collection tools and drones, the question of reasonableness is an important one for the lawyers who need to advise police on how to conduct a clean investigation.

“The real strength of the Fourth Amendment is that it gives citizens confidence in the legitimacy of the police activities, which makes citizens more likely to cooperate and support government initiatives,” Lynch said.

The recent Supreme Court case U.S. v. Jones provides some guidance as to how to apply Fourth Amendment protections to more modern-day investigative methods, but the case also leaves a lot of questions unanswered. In Jones, while all of the justices agreed that a search took place, they had three separate legal arguments as to why the search was unconstitutional under the Fourth Amendment:

Trespassing

The majority opinion by Justice Antonin Scalia found that planting the GPS device on the car was a violation because the car is private property. “Installing that GPS device was itself a search,” said David Gray, a law professor at the University of Maryland Carey School of Law. In the past, similar cases had found the searches to be lawful because the monitoring took place on public roads, where people should have no reasonable expectation of privacy. With this new interpretation that identifies a private vehicle as property, the court considered the installation of the GPS device as physical intrusion, Gray said.

Third-party data

A concurring opinion by Justice Sonia Sotomayor argued that the technology used in this search violates what society would consider reasonable expectations of privacy. Sotomayor was concerned about the capacity of GPS monitoring devices to gather together intimate details about people’s lives – whether they are installed by law enforcement officers or are voluntarily carried by anyone, Gray said. Sotomayor warned that this level of monitoring ability “would alter the relationship between citizen and government in a way that is inimical to democratic society.” The ability to aggregate and analyze large amounts of data may be the biggest problem for Sotomayor, Gray said.

“If you share private information with a third party, you have no constitutional complaints if that third party shares that information with the government or the government otherwise obtains access to that information from the third party through some kind of lawful means, including a subpoena,” Gray said.

Quantitative dimension

In another concurring opinion, Justice Samuel Alito identified that the constant and long-term monitoring in this case (28 days) was unreasonable and allows the government to gather too much information, Gray said. It is still an open question of how to determine quantitative privacy and if courts take the lead or the legislature steps in to find an adequate balance.

“Using the GPS device for an afternoon [is] probably not a search,” Gray said. “Using it for a longer period of time very well could be a search if the concurring opinion in Jones prevailed, but as it stands it doesn’t create any additional Fourth Amendment issues.” Gray recommends that law enforcement be cautious and obtain a warrant that specifies the entire time period of monitoring activities in order to avoid a Fourth Amendment challenge.

Experts agree that lawyers need to make sure police forces are properly educated and trained on what the U.S. v. Jones decision means for their activities, but they should also stay abreast of upcoming challenges in other cases down the road.

“The Fourth Amendment warrant requirement forces police to focus their efforts appropriately, it limits the use of techniques that tend to produce unreliable evidence, and it compels accountability,” Lynch said. “This makes the police more efficient and effective.”

The webinar was sponsored by the ABA Government and Public Sector Lawyers Division.

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