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.