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April 04, 2012 Articles

U.S. v. Jones Leaves Important Digital Privacy Questions Unanswered

Just how reasonable is our expectation of privacy?

By Nicole Jacoby

In a unanimous decision, the Supreme Court in January 2012 ruled that police violated a suspect’s Fourth Amendment rights when they placed a global positioning system (GPS) tracking device on his car and monitored its movements for nearly a month without a valid search warrant. United States v. Jones, 564 U.S. ___ (2011); 2012 WL 171117 (Jan. 23, 2012). Although all of the justices agreed that police use of the GPS device for such an extended period constituted an impermissible constitutional search, their rationale for finding that law enforcement had overstepped its bounds diverged significantly. The majority opinion, drafted by Justice Scalia, found that the physical placement of the GPS device on the suspect’s car constituted a trespass under the Fourth Amendment. In contrast, the concurring opinion, written by Justice Alito, asserted that the suspect’s reasonable expectation of privacy was violated by the long-term monitoring of his car’s movements. The majority’s ruling means that the Court has left for another day some of the most difficult constitutional privacy decisions in a generation.

The case centered on Antoine Jones, the owner of a Washington, D.C., nightclub, who was suspected of participating in a cocaine-selling ring and became the subject of a joint investigation by the FBI and local police. After employing various investigative techniques, including the installation of a surveillance camera outside the nightclub and a wiretap on his mobile phone, investigators obtained a warrant to place an electronic tracking device on a car registered to Jones’s wife. The warrant authorized the installation of the device within 10 days in the District of Columbia. Police installed the device on the eleventh day in the state of Maryland while the car was parked in a public lot. Over the next 28 days, police used the GPS device to monitor the vehicle’s location.

In 2007, Jones was convicted on charges related to narcotics trafficking and sentenced to life in prison on the basis of evidence gathered with the help of the GPS device, in particular, locational data that connected the defendant to a stash house containing large amounts of cash and cocaine. The U.S. Court of Appeals for the D.C. Circuit reversed the conviction, finding that the use of evidence at trial obtained through warrantless GPS monitoring violated the Fourth Amendment. United States v. Maryland, 615 F. 3d 544 (2010). In reaching its decision, the D.C. Circuit Court inquired whether GPS surveillance violated an individual’s “reasonable expectation of privacy” and found that “prolonged GPS monitoring reveals an intimate picture of the subject’s life that he expects no one to have—short of perhaps his spouse.” Id. at 563.

Justice Scalia’s Majority Opinion
The majority opinion in Jones, which was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor, concurred with the lower court’s outcome, but applied a different rationale. Rather than evaluate whether the use of the GPS device violated any “reasonable expectation of privacy,” the Court applied narrower principles of common-law trespass, arguing that the police’s physical intrusion onto the defendant’s “private property for the purpose of obtaining information” was a sufficient basis on which to find the surveillance constitutionally impermissible. 2012 WL 171117, at *3. In other words, because the GPS device was attached to Jones’s personal property (i.e., his car), police were required to obtain a search warrant irrespective of any reasonable expectations of privacy by Jones.

The majority emphasized that Fourth Amendment jurisprudence has always been closely tied to property and that the more recent construct invoking a “reasonable expectation of privacy,” which dates back to the Court’s 1967 decision in Katz v. United States, need be applied only where no physical trespass occurs. 389 U.S. 347 (1967). The majority explained that “[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis,” but that the “reasonable expectations” test was by no means the exclusive means by which to evaluate constitutional privacy. 2012 WL 171117, at *7.

Justice Sotomayer’s Concurring Opinion
In her concurring opinion, Justice Sonia Sotomayer agreed with the majority that the Katztest “augmented, but did not displace or diminish, the common-law trespassory test that preceded it.” Id. at *8. She acknowledged, however, that the majority opinion’s approach would fail to provide much guidance where “novel modes of surveillance,” such as police monitoring of factory-installed vehicle tracking devices or GPS-enabled smartphones, did not depend on a “physical invasion” of personal property. Id. at *8. She also expressed concern that even short-term GPS surveillance could implicate Fourth Amendment rights given its ability to generate “a precise, comprehensive record of a person’s public movements” that reflected a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at *9.

Justice Alito’s Opinion Concurring in Judgment
In an opinion concurring in judgment, Justice Alito, joined by Justices Ginsburg, Breyer, and Kagan, was sharply critical of the majority’s rationale. As an initial matter, the concurrence dismissed the notion that placement of a GPS device on a suspect’s vehicle in and of itself constituted an impermissible search. 2012 WL 171117, at *11. Noting that the majority attached “great significance to something that most would view as relatively minor,” Alito opined that the placement of a “small, light object” to the bottom of a car that did not interfere in any way with its operation would be regarded by most as “so trivial” that it would not “provide a basis for recovery under modern tort law.” Id. at *15.

Instead, Justice Alito framed the constitutional issue as whether “the use of a GPS for the purpose of long-term tracking” implicated reasonable expectations of privacy. Id. at *15. Applying Katz, the concurrence found that Jones’s reasonable privacy expectations were violated when his vehicle’s every move was monitored for a period of four weeks. Id. at *17. The concurrence left open the possibility that shorter periods of GPS surveillance might be constitutionally permissible without a warrant and did not specify the point at which such surveillance would traverse into unconstitutional territory, noting, however, that “the line was surely crossed before the 4-week mark.” Id.

Limited Guidance for Future Cases
In the end, Jones leaves many questions unanswered, as the majority and concurring opinions freely acknowledged. The holding ultimately was a narrow one—that surveillance through a GPS device physically attached by police to a suspect’s car requires a warrant under the Fourth Amendment. Although the majority made plain that the “reasonable expectations” test would apply to future instances of technical surveillance lacking physical intrusion, it is increasingly evident that the Katz analysis will be strained by the technological realities of the modern information age. Id. at *7.

Over the years, the Court has established a number of factors to determine whether an expectation of privacy is reasonable under Katz. The Court has considered the target of surveillance, finding that a person’s living quarters, for example, deserved greater protection than commercial property. See, e.g., United States v. Karo, 468 U.S. 705, 714 (1984). The Court also has weighed the type of information revealed in the surveillance, holding that the Fourth Amendment is more likely violated where technical surveillance reveals intimate or private details. See, e.g., Smith v. Maryland, 442 U.S. 735, 741–43 (1979), superseded by statute, 18 U.S.C. § 3121; cf. Florida v. Riley,488 U.S. 445, 452 (1989). Finally, the Court has evaluated the technical measures themselves, inquiring whether the information obtained could be similarly attained by more conventional—or more widely accepted—surveillance methods. See, e.g., United States v. Knotts, 460 U.S. 276, 282 (1983); California v. Ciraolo, 476 U.S. 207, 213–14 (1986); Dow Chem. Co. v. United States, 476 U.S. 227, 238 (1986).

These considerations, however, may prove inadequate in the context of today’s technologies and ubiquitous information-sharing practices. Ordinary citizens regularly, voluntarily, and on a large scale make available personal data about themselves—be it through geolocation services like Foursquare, online retailers such as Amazon, or social media such as Facebook. This makes more difficult the question of whether a law-enforcement technique reveals arguably intimate or private details. Similarly, if the basis of reasonableness turns on whether a surveillance method involves technology that is widely used, accepted, or easily replicated, then few technical-surveillance measures are likely to be deemed as constitutionally unacceptable.

In Jones, Justices Alito and Sotomayer recognized that the Katz test—at least as currently constructed—is not perfectly suited to our times. In his concurrence, Justice Alito acknowledged that the Katz analysis is flawed because it “rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations,” when in reality technological changes can lead to “periods in which popular expectations are in flux.” 2012 WL 171117, at *16. Moreover, the public may resist certain diminutions in privacy but eventually will “reconcile themselves to this development as inevitable.” Id.

Justice Sotomayer’s concurring opinion set forth new factors the Court may consider in future Fourth Amendment cases. Her opinion discounted as non-dispositive the issue of whether law enforcement might be able to replicate the results of techniques such as GPS monitoring through conventional measures. Id. at *9. Rather, she 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 their will, their political and religious beliefs, sexual habits, and so on.” Id. Further, Justice Sotomayer opined that it “may be necessary to reconsider the premise that an individual has no reasonable expectation in privacy in information disclosed to third parties,” explaining that “[t]his approach is ill-suited to the digital age, in which people reveal a great deal of information about themselves in the course of carrying out mundane tasks.” Id. at *10.

The approach proposed by Justice Sotomayer is similar to that taken in certain civil-law countries, such as Germany, whose constitutional jurisprudence prohibits the government from engaging in surveillance that could lead to the construction of a comprehensive “personality profile” of the suspect. See Census Act Case, 65 BVerfGE 1(17). Such jurisprudence is premised on the notion that citizens have a right to “informational self-determination,” i.e., the right to control when and under what circumstances their personal data is made public or shared. See David P. Currie, The Constitution of the Federal Republic of Germany 320 (1994).

Although Justice Sotomayer’s proposed approach may prove more practical and relevant in the digital age, the Jones Court has declined for now to create a broad right to freedom from new forms of electronic surveillance. Whether the Court will ultimately do so will require a case involving a significant breach of privacy without physical trespass.

Keywords: litigation, criminal litigation, GPS, surveillance, Supreme Court, Smith v. Maryland

Nicole Jacoby is an associate in the New York, New York, office of Debevoise & Plimpton LLP.

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