In a previous issue, I wrote about the pending decision in United States v. Jones, concerning the use of global positioning system (GPS)-based surveillance by police. In Jones, law enforcement officers had affixed a GPS tracking device to the suspect’s vehicle and used the information generated about the vehicle’s movements over the span of 28 days as part of the evidence used to convict the suspect, Jones, and others on drug trafficking and conspiracy charges. The device had “relayed more than 2,000 pages of data” in the 28-day period. 1 Although the officers had obtained a warrant authorizing the installation of the GPS unit, the warrant was valid for 10 days; the installation occurred after the warrant had expired. (The government conceded noncompliance with the warrant and argued only that a warrant was not required. 2)
On January 23, 2012, the U.S. Supreme Court issued its opinion in the Jones case, finding that the government’s actions constituted a search under the Fourth Amendment. 3
Back to the Basics
What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. 4
A unanimous Court agreed that the government violated Jones’s Fourth Amendment rights but disagreed on why the search was unconstitutional. The majority opinion, written by Justice Scalia (joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor) turned on the officers’ physical intrusion of personal property for the purpose of obtaining information, and declined to deal with the lengthy electronic monitoring. Justice Alito filed an opinion concurring in the judgment, in which Justices Ginsburg, Breyer, and Kagan joined, resorting only to the reasonable-expectation-of-privacy test to find that the lengthy monitoring that occurred constituted a search, and that, given the advances in technology, the majority’s trespassory requirement provided inadequate guidance for the future.
Citing the English case of Entick v. Carrington, 5 the Scalia opinion noted that “[w]e 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.” 6 While the Court’s later surveillance and wiretapping cases—for example, Katz v. United States (ruling that, even in the absence of a trespass, a Fourth Amendment search occurred when the government violated a subjective expectation of privacy that society recognized as reasonable) 7—had deviated from the exclusively trespass- and property-based approach exemplified by Olmstead v. United States 8 by focusing on whether government officers violated a person’s reasonable expectation of privacy, the Katz reasonable-expectation-of-privacy test added to, but did not replace, the common-law trespassory test. Katz, the majority in Jones stated, “did not narrow the Fourth Amendment’s scope.” 9
Accordingly, regardless of whether or not Jones had a reasonable expectation of privacy in the area of his vehicle (the underbody) that was accessed by government agents, when the government obtained information by physically intruding on a constitutionally protected area, a search within the meaning of the Fourth Amendment had “undoubtedly” occurred. 10
The Court rejected the government’s argument that several post- Katz cases foreclosed the finding that what occurred in Jones constituted a search. In an earlier case, United States v. Knotts, 11 the Court had found that the warrantless monitoring of signals from a beeper (a radio transmitter with a limited range), placed inside a container sold to the defendant, did not invade any legitimate expectation of privacy. Significantly, though, Knotts did not challenge the beeper’s warrantless installation because it had been placed in the container before it came into his possession. The resulting surveillance consisted of following the vehicle (with the container onboard) on a single trip along public streets and highways. This was held to be neither a search nor a seizure within the meaning of the Fourth Amendment because a driver using public thoroughfares had no reasonable expectation of privacy in going from one place to another. 12 But Knotts was not on all fours with the case before the Court:
Knotts would be relevant, perhaps, if the Government were making the argument that what would otherwise be an unconstitutional search is not such where it produces only public information. The Government does not make that argument, and we know of no case that would support it. . . . Jones, who possessed the Jeep at the time the Government trespassorily inserted the information-gathering device, is on much different footing. 13
Commenting on the length of the electronic monitoring, the majority mentioned that visual observation over a month-long period was likely “constitutionally permissible,” but declined to address whether achieving the same result through electronic means, without any accompanying trespass, was an unconstitutional invasion of privacy: “the present case does not require us to answer that question.” 14
Get with the Times
The Alito concurrence in Jones appeared frustrated with the majority’s reliance on 18th-century precedent to address 21st-century snooping: it was ironic, 15 “unwise,” 16 “strain[ed] the language of the Fourth Amendment,” 17 and was “highly artificial.” 18 Previous decisions had already moved away from this old trespass-based rule, one more particularly adapted to the days of the coach-and-four than Jeep and GPS. Looking to the facts, no “seizure” of property could occur absent some kind of “meaningful interference” with Jones’s possessory interests; here, there was no such interference with the vehicle. 19
Moreover, the reliance on the law of trespass was likely to “present particularly vexing problems” in future cases involving surveillance “carried out by making electronic, as opposed to physical, contact with the item [or person] to be tracked.” 20
Addressing the question sidestepped by the majority, the concurrence ruled that the use of longer-term GPS monitoring in investigations “of most offenses” did impinge on expectations of privacy. Although “relatively short-term monitoring of a person’s movements on public streets” was consistent with reasonable expectations of privacy, long-term monitoring intruded on a constitutionally protected sphere of privacy. 21 Without identifying the exact point at which the tracking of Jones’s vehicle became a search, this line “was surely crossed before the 4-week mark.” 22
zThe Alito concurrence hit the bulls-eye in remarking that most cell phones and other wireless devices already allow wireless carriers to conduct surveillance of users (tracking and recording of locations), making the notion of physical trespass in the privacy context largely irrelevant. 23 According to a news source, responses obtained to freedom of information requests filed by the American Civil Liberties Union (ACLU) with police departments nationwide suggest that the use of “cell tracking” information has become fairly routine and widespread—so much so that some telecommunication companies have standardized the prices they charge law enforcement for providing this information. 24
Based on the inconsistent judicial rulings to date respecting the application of the federal Stored Communications Act 25 to government requests for cell phone locational information, 26 the news article notes that the “police records show many departments struggling to understand and abide by the legal complexities of cellphone tracking.” 27
The Legislative Response
In an effort to update and clarify existing law, legislation has been introduced in the 112th Congress to address surveillance and privacy issues raised by the tracking capabilities of GPS devices, whether in cell phones or otherwise.
On May 17, 2011, Senator Patrick Leahy (D-Vt.) introduced a bill intended to update the Stored Communications Act. The bill, the Electronic Communications Privacy Act Amendments Act of 2011, S. 1011, defines “geolocation information” as information concerning the location of an electronic communications device generated by or derived from the operation or use of such a device, but excluding certain customer identification information and the contents of a communication. Among other things, section 5 of the bill (titled “Location Information Privacy”) adds a general prohibition on a governmental entity accessing or using “an electronic communications device to acquire geolocation information” without the consent of the device’s owner, a warrant, or a court order, but subject to an exception for an emergency situation, as defined. Section 6 likewise prohibits the government from requesting “a provider of electronic communication service, remote computing service, or geolocation information service to disclose geolocation information contemporaneously or prospectively,” absent a warrant or a call for emergency services by the user of an electronic communications device. 28
As of the end of April 2012, the bill had been read twice and referred to the Senate Committee on the Judiciary.
A month after the introduction of the Leahy bill, Sen. Ron Wyden (D-Or.) and Rep. Jason Chaffetz (R-Utah) introduced S. 1212 and H.R. 2168, respectively, the Geolocational Privacy and Surveillance Act (the “GPS Act”). 29 In general, these bills would make it an offense to “intentionally intercept, endeavor to intercept, or procure any other person to intercept or endeavor to intercept, geolocation information pertaining to another person”; or disclose or use that information knowing it was obtained in violation of the standards set out in the Act; or disclose or use that information knowing it was obtained in compliance with the Act but where the disclosure was made with “intent to improperly obstruct, impede, or interfere with a duly authorized criminal investigation.” (The bills also prohibit an entity providing a covered service from intentionally divulging geolocation information pertaining to a person.)
Exceptions include geolocation information acquired: by prior consent, in the normal course of business; as public information (accessing geolocation information “through any system that is configured so that such information is readily accessible to the general public”); electronic surveillance authorized by the Foreign Intelligence Surveillance Act of 1978; or in response to emergency situations or those involving theft or fraud. Another specific exception is when the government obtains a warrant requiring the provider to disclose geolocation information.
The bills define “geolocation information,” with respect to a person, as “any information, that is not the content of a communication, concerning the location of a wireless communication device or tracking device [as that term is further defined] that, in whole or in part, is generated by or derived from the operation of that device and that could be used to determine or infer information regarding the location of the person.” A person whose geolocation information has been intercepted, disclosed, or intentionally used in violation of the restrictions in the bills is provided with recourse to a civil action against the person, “other than the United States,” which engaged in that violation.
As of the time of writing, S. 1212 had been read twice and referred to the Senate Committee on the Judiciary; H.R. 2168 had been referred to the House Subcommittee on Crime, Terrorism, and Homeland Security.
The law and popular opinion are obviously not always in sync, particularly when the tradeoff is between rather abstract civil liberties and the more immediate handy attractions of electronic devices. Speaking about the shifting boundaries between technological developments and guaranteed privacy in the Jones case, Justice Alito noted:
Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable. 30
1. United States v. Jones, 132 S. Ct. 945, 947 (2012) (emphasis added).
2. Id. at 947.
3. Id. at 949, 952.
4. Id. at 953 (emphasis in original).
5. 95 Eng. Rep. 807 (C. P. 1765).
6. Jones, 132 S. Ct. at 949.
7. 389 U.S. 347 (1967).
8. 277 U.S. 438 (1928).
9. Jones, 132 S. Ct. at 951.
10. Id. n.3.
11. 460 U.S. 276 (1983).
12. Id. at 281, 285.
13. Jones, 132 S. Ct. at 952.
14. Id. at 54. The reality is that traditional visual monitoring using agents, multiple vehicles, and “perhaps aerial assistance” may be constitutional but is prohibitively expensive.
15. Id. at 957.
16. Id. at 958.
19. Id., citing United States v. Jacobsen, 466 U.S. 109 (1984).
20. Id. at 962.
21. Id. at 964.
23. Id. at 963.
24. Eric Lichtblau, Police Are Using Phone Tracking as a Routine Tool, N.Y. Times, Mar. 31, 2012, at www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?_r =2&partner=rss&emc=rss%3f (last accessed May 1, 2012).
25. 18 U.S.C.S. § 2703(d), part of the Electronic Communications Privacy Act of 1986.
26. See, e.g., In re United States for an Order Directing Provider of Elec. Comm. . . , 620 F.3d 304 (3d Cir. 2010) (holding that Stored Communications Act (SCA) applied as locational information was derived from a “wire communication” under the SCA); In re Application of the United States for an Order (1) Authorizing the Use of a Pen Register . . . , 384 F. Supp. 2d 562 (E.D.N.Y. 2005) (authorization, if granted, would effectively allow the installation of a tracking device without the showing of probable cause normally required for a warrant); In re Application for Pen Register and Trap/Trace Device with Cell Site Location Authority, 396 F. Supp. 2d 747 (S.D. Tex. 2005). For an excellent overview of this area of the law, see Richard M. Thompson, Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law (Cong. Res. Serv. Dec. 1, 2011), www.fas.org/sgp/crs/intel/R42109.pdf.
27. Lichtblau, supra note 24.
28. The text of the bill is available as a PDF at www.gpo.gov/fdsys/pkg/BILLS-112s1011is/pdf/BILLS-112s1011is.pdf.
29. The text of both bills is available at the http://thomas.loc.gov website.
30 . Jones, 132 S. Ct. at 962.