The Potentially Profound Implications of United States v. Jones
posted by Daniel Solove
I must respectfully disagree with a recent post by Renee Hutchins on our blog about the recent U.S. Supreme Court case, United States v. Jones. She concludes:
With full knowledge of this history, the Jones decision should give us pause. It is widely believed that the test the court enunciated nearly a half-century ago better protects the privacy interest of citizens in the face of advancing technology. By reverting to the language of trespass, the court this week took a step back when it could have taken a bold step forward. Moreover, by failing to engage the admittedly “thorny” question of whether the monitoring of the GPS device alone violated Mr. Jones’ constitutional rights, the court missed a momentous opportunity to speak clearly in a brave new world.
Although it is true that the majority opinion is narrow, the concurring opinions indicate five votes for a broader more progressive view of the Fourth Amendment, one which breaks from some of the Court’s antiquated notions of privacy. When I read Jones, I see cause for celebration rather than disappointment.
I have long argued that the Court has failed to understand that aggregated pieces of information can together upend expectations of privacy. See Privacy and Power 1434-35 (2001), The Digital Person 44-47 (2004), Understanding Privacy 117-21 (2008). I have also critiqued what I call the “secrecy paradigm” where the Court has held that privacy is only invaded by revealing previously concealed information. See The Digital Person 42-44 (2004), Understanding Privacy 106-12 (2008). I have argued that privacy can be invaded even by public surveillance. More recently, in Nothing to Hide 178 (2011), I argued:
The problem with the secrecy paradigm is that we do expect some degree of privacy in public. We don’t expect total secrecy, but we also don’t expect somebody to be recording everything we do. Most of the time, when we’re out and about, nobody’s paying any special attention to us. We do many private things in public, such as buy medications and hygiene products in drug stores and browse books and magazines in bookstores. We expect a kind of practical obscurity—to be just another face in the crowd.
In Justice Alito’s concurring opinion, he seemingly recognizes both of the concept of aggregation and the fact that the extent of the surveillance matter more than merely whether it occurs in public or private:
Under this approach, relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. For such offenses, society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.
Justice Sotomayor discusses this passage with approval in her concurrence, indicating five votes for this view. Indeed, she would go even further than Justice Alito.
I see profound implications in Jones for the future direction of the Fourth Amendment and privacy law more generally. I explain this in detail in a recent essay, United States v. Jones and the Future of Privacy Law: The Potential Far-Reaching Implications of the GPS Surveillance Case, Bloomberg BNA Privacy & Security Law Report (Jan. 30, 2012). From the essay:
The more contextual and open-ended view of privacy articulated by Justice Alito has five votes on the Court. This is a sophisticated view of privacy, one that departs from the antiquated notions the Court has often clung to. If this view works its way through Fourth Amendment law, the implications could be quite profound. So many of the Court’s rationales under the reasonable expectation of privacy test fail to comprehend how technology changes the dynamic of information gathering, making it ruthlessly efficient and making surveillance pervasive and more penetrating. We might be seeing the stirrings of a more modern Fourth Amendment jurisprudence, one that no longer seems impervious to technological development.
I continue:
Jones has implications that extend far beyond the Fourth Amendment. A considerable amount of common law, statutes, and policymaking – as well as federal constitutional law in other areas and state constitutional law – looks to Fourth Amendment jurisprudence for guidance about what constitutes privacy. Foreign law also is influenced by this jurisprudence. A new direction in the Court’s thinking when it comes to privacy will likely have effects on this law, opening the door to more progressive and nuanced conceptions of privacy.
Courts have long clung to the antiquated notions that the Court has articulated, failing to see privacy in public places, viewing information exposed to others as no longer private, and so on. I have referred to this view as the “secrecy paradigm” – the notion that a privacy violation occurs only when something completely hidden is revealed.For example, tort privacy cases involving surveillance in public have often failed because courts have concluded that there was no invasion of privacy.
Will the recognition by five justices that long-term surveillance can constitute a privacy violation even in public change other areas of law? I think it might. Will other courts and legislatures begin to recognize that aggregating small details about a person’s behavior over the course of time might upend expectations of privacy? I believe so. A majority of justices on the Supreme Court are willing to break away from the secrecy paradigm, and this fact is significant enough to spark considerable rethinking about privacy in many areas of law.
In Katz, the majority opinion was important, but the greatest impact stemmed from the Justice Harlan’s concurring opinion. The same might be true for Jones.
January 29, 2012 at 1:18 pm
Posted in: Constitutional Law, Criminal Procedure, Privacy, Privacy (Electronic Surveillance), Privacy (Law Enforcement), Privacy (National Security)
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Responses (2)
Lior - January 29, 2012 at 6:50 pm
Dan,
Good post. I agree with you about the Alito opinion’s reach and the potential significance for other bodies of information privacy law. And I appreciate his more nuanced differentiation between secrecy and privacy, as well as his treatment of the idea of privacy in public places.
To me, the least satisfying aspect of the Alito opinion is its treatment of Congress’s role versus the Court’s. Alito suggests that in light of the rapidly changing nature of technologies and the people’s use of them, Congress should take the lead in regulating the police’s use of GPS. But he then immediately says that because Congress has done nothing, the warrantless monitoring of the car is a Fourth Amendment violation. What happens if peoples’ expectations do change, substantially? Say most people start sharing location information with the public at large via foursquare and similar apps? What then? Does the Court overrule Alito’s assessment of Jones, saying that it no longer describes the public’s expectations? Or does it view the Alito opinion as establishing a precedent that becomes part of people’s reasonable expectations of privacy, even though most people no longer treat this information as particularly sensitive or private? It’s awkward to have the Constitution’s meaning change every time peoples’ expectations change.
All of that is to say that something like a “reasonable expectations of privacy” test that draws on peoples’ views and practices should be an easier sell in the context of, say, tort law than in constitutional law. If tort law and popular attitudes are out of step, then amending the law via legislatures won’t be so difficult.
Say what you will about the trespass test, but it’s at least a coherent vision of the Fourth Amendment: The Constitution sets up a floor of protection based on an original understanding, and then legislatures may step in to protect privacy more than the floor (as Congress did after Olmstead.) By contrast, I don’t think the advocates of Alito’s approach have fully worked out the relationship between the Fourth Amendment and laws like ECPA.
One answer is to define “reasonable expectations of privacy” in purely normative terms, not descriptive terms. Yet I don’t read Alito’s opinion to suggest that approach is one he finds appetizing. Is that the direction you’d like to go?
L Shanley - February 20, 2012 at 1:25 pm
Two articles on US v Jones worth checking out are by Robert Gellmann, JD, published in the Communia Blog of the Woodrow Wilson Center.
* Legislating Privacy after US v Jones: Can Congress Limit Government Use of New Surveillance Technologies?
http://stipcommunia.wordpress.com/2012/01/25/285/
* Nader, Onassis, and Jones: Privacy in Public and Limits on the Private Sector
http://stipcommunia.wordpress.com/2012/02/09/nader-onassis-and-jones-privacy-in-public-and-limits-on-the-private-sector/
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