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The Potentially Profound Implications of United States v. Jones

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2 Responses

  1. Lior says:

    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?

  2. L Shanley says:

    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/