Concurring Opinions » Privacy (Law Enforcement)

Stanford Law Review Online: The Privacy Paradox 2012 Symposium Issue

Stanford Law Review — Mon, 13 Feb 2012 18:04:41 +0000

Our 2012 Symposium Issue, The Privacy Paradox: Privacy and Its Conflicting Values, is now available online:

Essays

A Reasonableness Approach to Searches After the Jones GPS Tracking Case by Peter Swire (64 Stan. L. Rev. Online 57);
Privacy in the Age of Big Data by Omer Tene & Jules Polonetsky (64 Stan. L. Rev. Online 63);
Yes We Can (Profile You): A Brief Primer on Campaigns and Political Data by Daniel Kreiss (64 Stan. L. Rev. Online 70);
Paving the Regulatory Road to the “Learning Health Care System” by Deven McGraw (64 Stan. L. Rev. Online 75);
Famous for Fifteen People: Celebrity, Newsworthiness, and Fraley v. Facebook by Simon J. Frankel, Laura Brookover & Stephen Satterfield (64 Stan. L. Rev. Online 82); and
The Right to Be Forgotten by Jeffrey Rosen (64 Stan. L. Rev. Online 88).

The text of Chief Judge Alex Kozinski’s keynote is forthcoming.

Kennedy and Szoka on U.S. v. Jones

Danielle Citron — Mon, 30 Jan 2012 15:37:26 +0000

Charlie Kennedy and Berin Szoka of TechFreedom have an insightful op-ed in c/net yesterday. It resonates with some of what my co-blogger Dan Solove said in his post and urges Congress to move on ECPA reform. Here is the piece:

Last week’s unanimous decision of the Supreme Court in U.S. v. Jones (PDF) marks a major victory for constitutional rights. While the justices split in their rationale, they agreed that protecting Americans’ privacy in the digital age will require the Court to do a great deal more to untangle its confusing Fourth Amendment jurisprudence. That will likely take several more decisions — and many years. Meanwhile, Congress should heed Justice Samuel Alito’s call for legislation limiting government’s ability to track us and snoop through our private communications.

First, the good news: Law enforcement can no longer plant GPS tracking devices on our vehicles without satisfying the Fourth Amendment. Even better: the majority of justices — including conservative Justices Antonin Scalia, John Roberts, Anthony Kennedy, and Clarence Thomas, joined by Obama appointee Sonia Sotomayor — agreed that Jones is only the beginning of the long-overdue inquiry into constitutional protections against location-based surveillance.

In a way, Jones was an easy case: By recognizing that law enforcement’s physical trespass on private property to plant a surveillance device constituted a search, the Court ensured that the Fourth Amendment provides at least as much privacy protection today as when it was adopted. (Whether the Constitution required a probable cause warrant or would have been satisfied by some lesser standard, such as reasonable suspicion, the Jones majority did not decide.) Just as the Fourth Amendment would have been triggered if an 18th century constable hid himself in a suspect’s stagecoach to track him or record his conversations, so too must modern police satisfy the Fourth Amendment before using satellites to track devices hidden on cars. (Whether the Constitution required a probable cause warrant or would have been satisfied by some lesser standard, such as reasonable suspicion, the Jones majority did not decide.) But what about purely electronic surveillance?

Where no trespass occurs, the Court in Jones reiterated that, under its 1967 decision in U.S. v. Katz, the relevant question is whether government’s surveillance violated a reasonable expectation of privacy. Unfortunately, the Court offered no definitive guidance as to when location-based surveillance would meet this “reasonable expectation of privacy” standard. The majority sidestepped the issue by focusing on trespass, but suggested (reluctantly) that in future nontrespass surveillance cases, determining reasonableness could require balancing of such factors as length of surveillance and the seriousness of the crime under investigation. Four of the concurring justices went further, declaring that short-term monitoring not accompanied by trespass would not violate a surveillance target’s reasonable expectation of privacy.

For civil libertarians looking ahead to future Fourth Amendment battles, these confusing signals are hardly reassuring. But there is some comfort in Justice Sotomayor’s separate concurrence, boldly recalling the Fourth Amendment’s goal: to “curb arbitrary exercises of police power and to prevent ‘a too permeating police surveillance.’” Sotomayor opened the door to fundamentally rethinking the Katz test — or at least, its most pernicious result: the third-party doctrine.

The Court has in the past held that, as soon as you share information with any third party, you’ve given up any “expectation” of privacy. Thus, while the Fourth Amendment applies to digital files on your computer, it may not protect the same file stored on Dropbox or in your Gmail.

Sotomayor denounced the third-party doctrine as “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Technological evolution requires that “Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy,” she rightly declared. While Sotomayor didn’t say it outright, she seems to be hinting at what the Cato Institute argued in their excellent amicus brief in this case: the Court has fundamentally misinterpreted Katz. In fact, the “reasonable expectation” standard actually comes from Justice Harlan’s solo concurrence in that case. Justice Stewart’s majority opinion, joined by six justices, used a different standard:

What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.

In other words, as Cato argues, Katz really hinges on “physical and legal access to information rather than anyone’s feelings about privacy” — meaning “a ‘search’ has occurred when technological enhancement takes what the government observes far beyond what is ordinarily accessible [to law enforcement].” Clarifying the Katz standard would kill two birds with one stone: An accessibility standard would properly restore the presumption that surveillance requires a warrant and thus prevent privacy protections from lagging so far behind the evolution of electronic surveillance. It would also end the third-party doctrine’s absurd online/offline distinction.

The Court might or might not bring its Fourth Amendment jurisprudence into the 21st century, but Congress shouldn’t wait. Congress needs to act immediately ”to draw detailed lines, and to balance privacy and public safety in a comprehensive way,” as Justice Alito urged. Congress has never protected location data, but in 1986 attempted to protect data remotely stored with “third parties.” That law, the Electronic Communications Privacy Act, is a byzantine mess of outdated standards for determining when a warrant is and isn’t required.

So Congress needs to amend ECPA to ensure that a warrant is required for location data and for stored content regardless of how long it’s been held or whether it’s been opened. These are two of the four core principles agreed on by the Digital Due Process Coalition, a philosophically diverse alliance of advocacy organizations and legal scholars, joined by dozens of leading technology companies and trade associations. Sen. Leahy (D-Conn.), ECPA’s original author,has proposed to fix ECPA’s inconsistent content protections while Sen. Ron Wyden (D-Ore.), Sen. Mark Kirk (R-Ill.) and Rep. Jason Chaffetz (R-Utah) have proposed to protect location data.

By signing the “Not Without a Warrant” petition, you can support this bipartisan effort to the bring the Fourth Amendment into the digital age — by giving law enforcement access to private information only when courts determine they have established probable cause to believe that a crime has been committed or is about to be committed. That requirement is the crown jewel of our civil rights, and so long as the Court doesn’t protect it, Congress must.

The Potentially Profound Implications of United States v. Jones

Daniel Solove — Sun, 29 Jan 2012 18:18:32 +0000

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.

United States v. Jones, A Step Back for Rights

Renee Hutchins — Sun, 29 Jan 2012 15:29:04 +0000

I appreciate the chance to engage with CoOp readers on the United States v. Jones case. I wrote an Op Ed for the Baltimore Sun, so here’s what I have to say.

I really wanted to love the Supreme Court’s decision Monday in United States v. Jones. As one deeply committed to personal liberty and restrained government, what’s not to love when the nation’s highest court finds the police must obtain a warrant before continuously tracking the citizenry with installed GPS devices? Unfortunately, the answer is “plenty.”

The Supreme Court in Jones could have categorically denounced intrusive government monitoring in the mold of the Orwellian state. It didn’t. And so, while the result in Jones is being roundly celebrated in many quarters, there remain good reasons for privacy fans to hold our applause.

Acting on suspicions that Antoine Jones was selling drugs, the government attached a GPS device to his car. From that device, police computers received a steady stream of information about the car’s location for 28 days. In all, more than 2,000 pages of location data were transmitted. Some of the data linked Mr. Jones to a house where substantial quantities of drugs and money were found. Mr. Jones was consequently charged with drug trafficking offenses. The trial court held that most of the data gleaned from the GPS device was admissible.

Commendably, the Supreme Court reversed that decision and declared the GPS monitoring of Mr. Jones unconstitutional. In doing so, however, the court refused to answer the long-standing question of constitutional limits on the Orwellian state. The case was an opportunity for the court to announce that round-the-clock surveillance of citizens without a warrant offends Fourth Amendment guarantees. Instead, the court based its analysis upon the narrower observation that the police attached a device to Mr. Jones’ car. The Supreme Court’s reluctance is understandable; the broader questions are complex and not easily resolved. But, now more than ever, advances in technology make pressing the need to confront the questions head on.

The court’s refusal to tell us whether the Constitution protects us from suspicion-less government monitoring is alone cause for frustration. But perhaps as troubling is the language the court used to accomplish its elusion.

Writing for the majority, Justice Antonin Scalia revitalized what had been widely viewed as a dead (or at least dying) branch of Fourth Amendment analysis. Using as his starting point a Supreme Court case decided in 1765, Justice Scalia wrote that the Fourth Amendment has historic anchors in notions of physical intrusion. Building upon this foundation, he determined that the government trespass necessary to install the GPS device on Mr. Jones’ vehicle (rather than the government’s use of the device to monitor Mr. Jones) made law enforcement’s actions constitutionally offensive.

Why does it matter that the court reached back to early trespass notions to justify its decision? Because nearly a half-century ago, the court walked away from physical trespass as the touchstone of Fourth Amendment protection. In walking away, the court recognized that, as technology progresses, continuing to tie constitutional protection to trespass results in an unacceptably shrinking realm of privacy. The court therefore assured us that, beyond protecting against physical intrusions, the Fourth Amendment guarantees each of us a reasonably expected realm of privacy. As the court then famously stated, the Fourth Amendment “protects people, not places.”

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.

Barry Friedman on United States v. Jones

Danielle Citron — Sun, 29 Jan 2012 12:50:08 +0000

Professor Barry Friedman’s opinion piece in the New York Times on Jones is characteristically insightful: we’ve featured his work in our Bright Ideas series and other posts. His piece adds an important layer to, and echoes, the conversation our experts have been having this past week. If you haven’t seen it, here it is:

EVERY day, those of us who live in the digital world give little bits of ourselves away. On Facebook and LinkedIn. To servers that store our e-mail, Google searches, online banking and shopping records. Does the fact that so many of us live our lives online mean we have given the government wide-open access to all that information?

The Supreme Court’s decision last week in United States v. Jones presents the disturbing possibility that the answer is yes. In Jones, the court held that long-term GPS surveillance of a suspect’s car violated the Fourth Amendment. The justices’ 9-to-0 decision to protect constitutional liberty from invasive police use of technology was celebrated across the ideological spectrum.

Perhaps too quickly. Jones, along with other recent decisions, may turn the Fourth Amendment into a ticking time bomb, set to self-destruct — and soon — in the face of rapidly emerging technology.

Dog sniffs. Heat sensors. Helicopter flyovers. Are these “searches” within the meaning of the Fourth Amendment? The court has struggled with these questions over the years.

Writing for the court in Jones, Justice Antonin Scalia looked to the 18th century for guidance. In his view, attaching the GPS was the sort of physical invasion of property the framers had in mind when they wrote the Bill of Rights.

Though Justice Samuel A. Alito Jr. agreed that GPS tracking was a search, he ridiculed Justice Scalia for focusing on “conduct that might have provided grounds in 1791 for a suit for trespass to chattels.” For Justice Alito, the risk the GPS posed was loss of privacy, not property. Instead the question was whether long-term GPS tracking violated today’s “reasonable expectations of privacy,” not those of another era. As a matter of existing doctrine, he asked the right question, but when applied to the government, the standard he used could turn our lives into the proverbial open book, and soon.

Focusing on public expectations of privacy means that our rights change when technology does. As Justice Alito blithely said: “New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

But aren’t constitutional rights intended to protect our liberty even when the public accepts “increased convenience or security at the expense of privacy”? Fundamental rights remain fundamental in the face of time and new inventions.

Paradoxically, Justice Scalia’s approach will better protect privacy rights over the long term. (He didn’t deny the importance of today’s expectations; he simply stressed that at the very least, the Fourth Amendment protects rights we had when the framers drafted the Constitution.) Still, his approach is problematic. There isn’t always an available 18th-century analog for current government conduct, like GPS tracking. Justice Alito facetiously suggested that the only 18th-century analog would have been a constable hiding in the back of someone’s carriage. (When Justice Scalia agreed, Justice Alito wryly remarked that “this would have required either a gigantic coach, a very tiny constable, or both.”) And when 18th-century analogs run out, the court is left with its reasonable expectation test.

In a related case, Kyllo v. United States, even Justice Scalia held that police use of a thermal imager to detect marijuana “grow lamps” within a home was a search — but only so long as such technology was “not in general public use.” There’s that time bomb: expanding use of technology narrows rights.

Among the justices in the Jones case, only Sonia Sotomayor insisted that fundamental rights not be hostage to technological change. She called into question the court’s longstanding reliance on expectations of privacy, which she deemed “ill-suited to the digital age.” She suggested reconsidering the rule that the police can, without a warrant, get the vast amounts of information about ourselves that we give to third parties. To her, sharing our secrets — including e-mail and banking histories — with someone else does not necessarily mean the government gets access, too. It is too bad her separate opinion mustered no other votes.

Barry Friedman is a professor at the New York University School of Law and the author of “The Will of the People: How Public Opinion Has Influenced the Supreme Court and Shaped the Meaning of the Constitution.”

Why Scalia is Right in Jones: Magic Places and One-Way Ratchets

Derek Bambauer — Tue, 24 Jan 2012 17:05:12 +0000

The Supreme Court handed down its decision in U.S. v. Jones yesterday, and the blogosphere is abuzz about the case. (See Margot Kaminski, Paul Ohm, Howard Wasserman, Tom Goldstein, and the terrifyingly prolific Orin Kerr.) The verdict was a clean sweep – 9-0 for Jones – but the case produced three opinions, including a duel between Justices Antonin Scalia and Samuel Alito. Thus far, most privacy and constitutional law thinkers favor Alito’s position. That’s incorrect: Justice Scalia’s opinion is far more privacy protective. Here’s why:

Scalia’s theory is basically Katz (reasonable expectation of privacy) plus trespass. For Scalia, the conduct in Jones – law enforcement attaching a GPS transmitter to Jones’s car, and then tracking its movements – is a search because “The Government physically occupied private property for the purpose of obtaining information.” But, that’s not quite precise enough: the key is that the government must “physically intrud[e] on a constitutionally protected area.” (emphasis mine) The tricky part, naturally, is deciding what counts as such an area. Scalia disposes of Oliver (the open fields case) by emphasizing that a field “is not one of those protected areas enumerated in the Fourth Amendment.” Katz is still around for “Situations involving merely the transmission of electronic signals without trespass.”

Scalia thus wants to create magic places: spots where any governmental intrusion, with any physicality, is a search. The home is certainly such a place (see Kyllo) – Jane Yakowitz pointed out to me that this has to explain why the Court took cert in Florida v. Jardines, when we already have Caballes and Place on the books. Determining which places are magic is hard. It’s here that Scalia’s originalism does its work: Scalia wants to apply the understanding and expectations from 1791 to sort places into protected/magic and unprotected.

Alito thinks this is rubbish: his footnote 3 openly makes fun of Scalia’s contention that we can analogize the Jones facts to a constable hiding in a coach (“this would have required either a gigantic coach, a very tiny constable, or both”). His method would instead simply apply the Katz reasonable expectation of privacy test, which he rightly points out is more consonant with the Court’s jurisprudence since its rejection of the physical trespass test set out in Olmstead. This approach looks analytically cleaner, although Alito forthrightly acknowledges the circularity inherent in the reasonable expectations test – expectations derive from the law, in addition to driving it. And, of course, there is the one-way ratchet worry: the government can reduce our reasonable expectations of privacy by abusing our privacy.

Alito, though, proceeds to mess up a previously tidy picture by inventing two new considerations for Fourth Amendment analysis: the duration of the information-gathering (such as GPS tracking), and the severity of the crime. Scalia rightly smacks Alito around for this, as he fails to ground this analysis in anything remotely resembling precedent. At best, this is judicial activism, and at worst, it’s an invitation for a wave of new cases where the government tests boundaries and magnifies the threat posed by those surveilled.

I like Scalia’s approach much better. It sets out clearly that there are some spaces that get heightened privacy protection: we don’t have to engage in the weighing involved in the reasonable expectations test, so it’s cheaper, and there won’t be instances where judges decide that in fact society is willing to permit certain observations in the home, for example. Scalia’s approach is a firewall: it offers a redoubt for privacy. And, it maintains the viability of Katz in other instances. Alito’s two additional considerations point towards the worry that makes me prefer Scalia. Imagine observation of the interior of a home – say, using tiny drones – that would clearly constitute a search under the magic places theory. If the observation is fairly short, or if the crime involved is serious (drug smuggling, terrorism, child pornography), Alito’s analysis would find that there isn’t a search, and hence no need for a warrant. Scalia’s approach always forces the cops to get a warrant. That reassures me.

There are two issues that neither Alito nor Scalia deals with, although to her credit Justice Sonia Sotomayor tackles both: pervasive surveillance, and cloud computing. Pervasive surveillance involves the government’s increasing capabilities to deploy low-cost observation technology – everything from traffic cameras to facial recognition technology – and to store, index, and analyze the resulting torrent of data. Cloud computing involves the shift from maintaining information on devices we control to storing it on devices controlled by Google or Apple or Amazon. The former presents the mosaic theory that the D.C. Circuit endorsed in its opinion in Jones. The latter invites us to re-visit the third party doctrine, whereby one loses any reasonable expectation of privacy if one turns over data to someone else (unless that someone is, say, a priest or lawyer). One failing of the two major opinions in Jones is that they fail to provide any guide for how the Court thinks about these issues – other than to hope mightily that Congress will take care of it for them.

I like Scalia’s hybrid with its magic places. What our privacy rights are when we venture outside the castle walls is a topic the court reserves for another day.

Cross-posted at Info/Law.

United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5.

Priscilla Smith — Tue, 24 Jan 2012 16:39:23 +0000

By Priscilla Smith, Nabiha Syed & Albert Wong, Information Society Project at Yale Law School

There was exciting news from the Supreme Court yesterday. By a rare 9-0 vote, in United States v. Jones, No. 10-1259, the Court held that the Government should have obtained a warrant before placing a GPS surveillance device on the defendant’s car and monitoring his movements. This result was not completely unexpected, especially considering the Justices’ interest at oral argument in the Government’s position that GPS surveillance technology could be used without a warrant to track the movements of any car — even the Justices’ own cars — for an unlimited period of time. The Government argued — unsuccessfully — that this result was compelled because citizens have no privacy interests in their public movements.

Of particular note, the three opinions in the case and the unusual line-up make for a broader ruling than is apparent at the outset. The most narrow rule comes from the Court’s opinion written by Justice Scalia and joined by Justices Roberts, Kennedy, Thomas, and — wait for it — Sotomayor, holding that that “the Government’s installation of a GPS device on a target’s vehicle,²and its use of that device to monitor the vehicle’s movements, constitutes a “search.” Slip op. at 3. Scalia notes that the Fourth Amendment protects the “right of the people to be secure in their . . . effects,” and it “is beyond dispute that a vehicle is an ‘effect’ as that term is used in the [Fourth] Amendment.” Id. at 3. Ergo, he holds the installation done with the intent to “use … th[e] device to monitor the vehicle’s movements” was a search. Id. at 3. He describes the action at issue, saying “[t]he Government physically occupied private property for the purpose of obtaining information.” He holds that since this form of physical trespass and monitoring would have been a search within the meaning of the Fourth Amendment at the time it was adopted, it is a search now. Hello, original application guy.

On first glance, it seems that Scalia might be returning to old interpretations of the Fourth Amendment that required a physical trespass to have occurred before an action could be considered a search. But what Scalia is actually doing here is defining the Court’s task, which is “at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment,” and because it would have, it is a search now. Just because in 1967 Katz said that the Fourth Amendment protects more than physical trespass, doesn’t mean that the Fourth Amendment doesn’t protect physical trespass. See slip op. at 6-7 (noting Katz did not erode the principle that a search occurs where the Government “does engage in physical intrusion of a constitutionally protected area in order to obtain information.”) (emphasis in original). So Scalia establishes and emphasizes a threshold for determining when a search has occurred — a threshold that is not comprehensive, but sufficient to resolve the issue at hand.

And thus Scalia declines to go further and consider what would happen if, hypothetically, there was no physical trespass. He does hold open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, is an unconstitutional invasion of privacy.” Id. at 11. Simple enough. Why decide the harder issue with all its accompanying “vexing problems” that would arise in a case involving electronic surveillance without an accompanying trespass? Scalia argues that there is no reason to “rush forward” to resolve them now. Slip op. at 12. Put aside for a minute that he encouraged the Court in United States v. Kyllo, a case holding that the use of heat-seeking technology required a warrant, to adopt rules that “take account of more sophisticated systems that are already in use or in development,” Kyllo, 533 U.S. at 37.

But Scalia has a problem. As he points out, in its opinion in United States v. Knotts, the Court upheld the use of beeper technology to track a target’s movements, holding there was no invasion of privacy. He distinguishes Knotts from this case because Knotts did not involve physical trespass. The beeper there was placed inside a container with consent of the then-owner of the container, and only then was the container placed in the driver’s car. Moreover, Knotts didn’t challenge the installation. Right. But the Court didn’t decide there was no search in Knotts based on an absence of a physical trespass; the Court decided the case holding there was no invasion of privacy. So shouldn’t Scalia explain to us why he holds open the possibility that “achieving the same result through electronic means [as they achieved here with physical trespass], without an accompanying trespass, [like they did in Knotts] is an unconstitutional invasion of privacy?” Id. at 11. Saying that GPS is a different technology, as he does in a footnote, is not enough. Doesn’t he owe us an explanation of why Knotts doesn’t preclude that possibility, as the Government so vehemently argued it did and the Ninth Circuit in a similar case agreed? See Pineda-Moreno v. United States.

Of course he does — or so says Justice Alito, with Justices Ginsburg, Breyer and Kagan joining. See Alito’s concurrence, slip op. at 13. In fact, not only did Alito think the Court should reach the Katz expectation of privacy test, he didn’t buy the physical trespass holding at all, and lists its many flaws. Justice Alito then evaluates the GPS surveillance here, noting that “devices like the one used in the present case … make long-term monitoring relatively easy and cheap.” “[T]he best we can do in this case,” reasons Alito, “is to apply existing Fourth Amendment doctrine” and “ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.” Alito at 13. Under this inquiry, “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy,” because “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.” Id. Now, Justice Alito recognizes the “degree of circularity” inherent in Katz’s expectation of privacy test — i.e., the problem that, if read literally, the test would permit a situation in which the government takes away your privacy so that one no longer has an“expectation” of it — and in so doing, one no longer has a constitutionally protected interest in it. Hello, 1984. Unfortunately, though, his concurrence does nothing to address, and instead relies exactly on, that circular part of it — the intrusion you would or would not have anticipated. The concurrence is also remarkably skimpy in its explication of why exactly the surveillance is “intrusive” — you know, the point that is the actual crux of the case.

The only Justice who doesn’t avoid the issues is Justice Sotomayor. Although she joins the narrow majority opinion because she buys Scalia’s argument that the physical trespass here suffices to decide the case, she writes separately to make clear that “physical intrusion is now unnecessary to many forms of surveillance,” her slip op. at 2, a statement that Scalia certainly does not deny.

Moreover, and making this a much broader ruling than it appears on first glance, unlike Scalia, Sotomayor explains the distinction between Jones and Knotts. She agrees with the Alito Four that “’longer term GPS monitoring in investigation of most offenses impinges on expectations of privacy.’” Sotomayor concurrence at 3, quoting Alito concurrence at 13. Rather than relying on whether citizens “anticipate” invasions of their privacy, her opinion reflects the concerns of the D.C. Circuit, New York Court of Appeals, and C.J. Kozinski writing in dissent from denial of rehearing en banc in a similar case in the Ninth Circuit, that the information collected by GPS monitoring generates a “comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Id. at 3. (In fact, unless we missed something, she appears to be the only one who cites to Chief Judge Kozinski’s dissenting opinion in the Pineda-Moreno case; no one seems to cite the DC Circuit opinion, scared off perhaps by some folks’ misplaced railing against its “mosaic” language). She further discusses the concerns raised in a brief filed by some of us at the ISP on behalf of a group of privacy scholars that GPS surveillance, as she says, “evades the ordinary checks that constrain abusive law enforcement practices” and is susceptible to abuse, and that awareness of government monitoring chills associational and expressive freedoms. Id. She summarizes:

I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment’s goal to curb arbitrary exercises of police power to and prevent “a too permeating police surveillance,” United States v. Di Re, 332 U. S. 581, 595 (1948).

Finally, Sotomayor suggests a more fundamental change in the jurisprudence to “reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” and notes that the rule is “ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor at 5, questioning the notion at the heart of the rule that “secrecy [is] a prerequisite to privacy.”

The long and the short of it is that by agreeing with the Alito Four that the use of GPS surveillance technology for a prolonged period violates a reasonable expectation of privacy, Sotomayor’s concurrence means that five justices agree to veer away from the inside/outside distinction relied upon by the Government. It seems that we may have some privacy interests in our public movements after all.

Jones is a Near-Optimal Result

Paul Ohm — Tue, 24 Jan 2012 16:11:21 +0000

Thanks to Danielle for inviting me to post my thoughts. I’ll try to come up with some new, original thoughts in a later post, but to start, let me offer an abridged version of what I posted yesterday on my home blog, Freedom to Tinker.

I think the Jones court reached the correct result, and I think that the three opinions represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how the three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:

Justice Alito?

Maybe I’m not a savvy court watcher, but I did not see this coming. The fact that Justice Alito wrote such a strong privacy-centric opinion suggests that future Fourth Amendment litigants will see a well-defined path to five votes, especially since it seems like Justice Sotomayor will likely provide the fifth vote in the right future case.

Justice Scalia and Thomas showed restraint.

The majority opinion goes out of its way to highlight that its focus on property is not meant to foreclose privacy-based analyses in the future. It uses the words “at bottom” and “at a minimum” to hammer home the idea that it is supplementing Katz not replacing it. Maybe Justice Scalia did this to win Justice Sotomayor’s vote, but even if so, I am heartened that neither Justice Scalia nor Justice Thomas thought it necessary to write a separate concurrence arguing that Katz’s privacy focus should be replaced with a focus only on property rights.

Justice Sotomayor does not like the third-party doctrine.

It’s probably best here just to quote from the opinion:

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U.S., at 742; United States v. Miller, 425 U.S. 435, 443 (1976). This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “dimunition of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Wow. And Amen. Set your stopwatches: the death watch for the third-party doctrine has finally begun.

The wrong case for a privacy overhaul of the Fourth Amendment.

Most importantly, I’ve had misgivings about using Jones as the vehicle for fixing what is broken with the Fourth Amendment. GPS vehicle tracking comes laden with lots of baggage–practical, jurisprudential and atmospheric–that other actively litigated areas of modern surveillance do not. GPS vehicle tracking happens on public streets, meaning it runs into dozens of Supreme Court pronouncements about assumption of risk and voluntarily disclosure. It faces two prior precedents, Karo and Knotts, that need to be distinguished or possibly overturned. It does not suffer (as far as we know) from a long history of use against innocent people, but instead seems mostly used to track fugitives and drug dealers.

For all of these reasons, even the most privacy-minded Justice is likely to recognize caveats and exceptions in crafting a new rule for GPS tracking. Imagine if Justice Sotomayor had signed Justice Alito’s opinion instead of Justice Scalia’s. We would’ve been left with a holding that allowed short-term monitoring but not long-term monitoring, without a precise delineation between the two. We would’ve been left with the possible new caveat that the rules change when the police investigate “extraordinary offenses,” also undefined. These unsatisfying, vague new rules would have had downstream negative effects on lower court opinions analyzing URL or search query monitoring, or cell phone tower monitoring, or packet sniffing.

Better that we have the big “reinventing Katz” debate in a case that isn’t so saddled with the confusions of following cars on public streets. I hope the Supreme Court next faces a surveillance technique born purely on the Internet, one in which “classic trespassory search is not involved.” If the votes hold from Jones, we might end up with what many legal scholars have urged: a retrenchment or reversal of the third-party doctrine; a Fourth Amendment jurisprudence better tailored to the rise of the Internet; and a better Constitutional balance in this country between privacy and security.

Welcoming Experts to Discuss the Supreme Court’s Decision in United States v. Jones

Danielle Citron — Tue, 24 Jan 2012 13:26:15 +0000

As my co-blogger Dan Solove noted, the Supreme Court ruled in United States v. Jones, finding the warrantless GPS surveillance of a car unconstitutional. There’s much to discuss about the majority opinion written by Scalia (with Roberts, Thomas, Kennedy, and Sotomayor), a concurrence written by Sotomayor, and a concurrence by Alito (with Ginsburg, Breyer, and Kagan). We’re lucky to have experts on board to help us sort it out: Margot E. Kaminski, Executive Director of the Yale Information Society Project and Research Scholar and Lecturer at Yale Law School whose scholarship focuses on civil liberties, privacy, and surveillance, guest blogger Paul Ohm, Associate Professor of Law at the University of Colorado School of Law and former computer programmer and network systems administrator who has authored many important pieces on privacy and surveillance, and Priscilla “Cilla” Smith, Senior Fellow at the Yale Information Society Project who has co-authored “When Machines Are Watching: How Warrantless Use of GPS Surveillance Technology Violates the Fourth Amendment Right Against Unreasonable Searches,” 121 The Yale Law Journal Online 177 (2011) (with Nabiha Syed, David Thaw and Albert Wong). In a week or so, we will also be hearing from my colleague Renée Hutchins, Associate Professor of Law at the University of Maryland Francis King Carey School of Law, whose article “Tied Up in Knotts?” GPS and the Fourth Amendment, 55 UCLA Law Review 1 (2007) appeared in many district and Court of Appeals decisions wrestling with warrantless GPS tracking on cars.

United States v. Jones — The Fourth Amendment and GPS Surveillance

Daniel Solove — Mon, 23 Jan 2012 17:04:46 +0000

The U.S. Supreme Court has decided United States v. Jones, concluding that when the government installs a GPS surveillance device on a car, it is a Fourth Amendment search. The majority uses a property-based rationale and the concurring opinion (Alito, Ginsburg, Breyer, and Kagan) uses a privacy-based rationale. More thoughts and analysis to come later.

I also want to congratulate my colleague Orin Kerr, who is cited in both the majority opinion and in a concurring opinion for his article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). The majority opinion relies heavily on Orin’s theory of the Fourth Amendment and property that he sets forth in the first part of his article.