Category: Privacy (Law Enforcement)

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

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,2 and 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.

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Jones is a Near-Optimal Result

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:

  1. Justice Alito?
  2. 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.

  3. Justice Scalia and Thomas showed restraint.
  4. 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.

  5. Justice Sotomayor does not like the third-party doctrine.
  6. 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.

  7. The wrong case for a privacy overhaul of the Fourth Amendment.
  8. 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.

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

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.

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

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.

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The Year in Privacy Books 2011

Here’s a list of notable privacy books published in 2011.

Previous lists:

Privacy Books 2010

Privacy Books 2009

Privacy Books 2008

 

Saul Levmore & Martha Nussbaum, eds., The Offensive Internet (Harvard 2011)

 

This is a great collection of essays about the clash of free speech and privacy online.  I have a book chapter in this volume along with Martha Nussbaum, Cass Sunstein, Brian Leiter, Danielle Citron, Frank Pasquale, Geoffrey Stone, and many others.

Daniel J. Solove, Nothing to Hide: The False Tradeoff Between Privacy and Security (Yale 2011)

 

Nothing to Hide “succinctly and persuasively debunks the arguments that have contributed to privacy’s demise, including the canard that if you have nothing to hide, you have nothing to fear from surveillance. Privacy, he reminds us, is an essential aspect of human existence, and of a healthy liberal democracy—a right that protects the innocent, not just the guilty.” — David Cole, New York Review of Books

Jeff Jarvis, Public Parts: How Sharing in the Digital Age Improves the Way We Work and Live (Simon & Schuster 2011)

 

I strongly disagree with a lot of what Jarvis says, but the book is certainly provocative and engaging.

Daniel J. Solove & Paul M. Schwartz, Privacy Law Fundamentals (IAPP 2011)

 

“A key resource for busy professional practitioners. Solove and Schwartz have succeeded in distilling the fundamentals of privacy law in a manner accessible to a broad audience.” – Jules Polonetsky, Future of Privacy Forum

Eli Pariser, The Filter Bubble (Penguin 2011)

 

An interesting critique of the personalization of the Internet.  We often don’t see the Internet directly, but through tinted goggles designed by others who determine what we want to see. 

Siva Vaidhyanathan, The Googlization of Everything (U. California 2011)

 

A vigorous critique of Google and other companies that shape the Internet.  With regard to privacy, Vaidhyanathan explains how social media and other companies encourage people’s sharing of information through their architecture — and often confound people in their ability to control their reputation.

Susan Landau, Surveillance or Security? The Risk Posed by New Wiretapping Technologies (MIT 2011)

 

A compelling argument for how designing technologies around surveillance capabilities will undermine rather than promote security.

 


Kevin Mitnick, Ghost in the Wires (Little Brown 2011)

 

A fascinating account of the exploits of Kevin Mitnick, the famous ex-hacker who inspired War Games.  His tales are quite engaging, and he demonstrates that hacking is often not just about technical wizardry but old-fashioned con-artistry.

Matt Ivester, lol . . . OMG! (CreateSpace 2011)

 

Ivester created Juicy Campus, the notorious college gossip website.  After the site’s demise, Ivester changed his views about online gossip, recognizing the problems with Juicy Campus and the harms it caused.  In this book, he offers thoughtful advice for students about what they post online.

Joseph Epstein, Gossip: The Untrivial Pursuit (Houghton Mifflin Harcourt 2011)

 

A short engaging book that is filled with interesting stories and quotes about gossip.  Highly literate, this book aims to expose gossip’s bad and good sides, and how new media are transforming gossip in troublesome ways.

Anita Allen, Unpopular Privacy (Oxford 2011)

 

My blurb: “We live in a world of increasing exposure, and privacy is increasingly imperiled by the torrent of information being released online. In this powerful book, Anita Allen examines when the law should mandate privacy and when it shouldn’t. With nuance and thoughtfulness, Allen bravely tackles some of the toughest questions about privacy law — those involving the appropriate level of legal paternalism. Unpopular Privacy is lively, engaging, and provocative. It is filled with vivid examples, complex and fascinating issues, and thought-provoking ideas.”

Frederick Lane, Cybertraps for the Young (NTI Upstream 2011)

 

A great overview of the various problems the Internet poses for children such as cyberbullying and sexting.  This book is a very accessible overview for parents.

Clare Sullivan, Digital Identity (University of Adelaide Press 2011)

 

Australian scholar Clare Sullivan explores the rise of “digital identity,” which is used for engaging in various transactions.  Instead of arguing against systematized identification, she sees the future as heading inevitably in that direction and proposes a robust set of rights individuals should have over such identities.  This is a thoughtful and pragmatic book, with a great discussion of Australian, UK, and EU law.

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Two New Cases Regarding NSA Surveillance

The 9th Circuit has decided a pair of cases involving the NSA Surveillance Program.

In Jewel v. NSA, the 9th Circuit concluded that plaintiffs had standing to raise constitutional challenges against NSA telephone surveillance:

At issue in this appeal is whether Carolyn Jewel and other residential telephone customers (collectively “Jewel”) have standing to bring their statutory and constitutional claims against the government for what they describe as a communications dragnet of ordinary American citizens.  In light of detailed allegations and claims of harm linking Jewel to the intercepted telephone, internet and electronic communications, we conclude that Jewel’s claims are not abstract, generalized grievances and instead meet the constitutional standing requirement of concrete injury.

In In re NSA Telecommunications Litigation, the 9th Circuit held that § 802 of the Foreign Intelligence Surveillance Act (“FISA”), 50 U.S.C. § 1885a (the FISA Amendments
Act) is constitutional.  The Act retroactively immunized telecommunication companies for cooperating with the NSA.

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New Edition of Information Privacy Law Casebooks

The new edition of my casebook, Information Privacy Law (4th edition) (with Paul M. Schwartz) is hot off the presses.  And there’s a new edition of my casebook, Privacy, Information, and Technology (3rd edition) (with Paul M. Schwartz).   Copies should be sent out to adopters very soon.  If you’re interested in adopting the book and are having any difficulties getting a hold of a copy, please let me know.

You also might be interested in my concise guide to privacy law, also with Paul Schwartz, entitled Privacy Law Fundamentals.   This short book was published earlier this year.  You can order it on Amazon or via IAPP.  It might make for a useful reference tool for students.

 

Ackerman and Benkler on the Occupied First Amendment

Slate writer Raymond Vasvari recently observed that, “for every uplifting paragraph” of precedent vindicating rights to protest, there are a “thousand cases bending an abstract right to the prosaic realities of protest.” We may never learn the extent to which Occupy Wall Street protesters were classified “enemies within,” and subject to coordinated intergovernmental suppression. But we can observe, with professors Ackerman and Benkler, that the “irony of free speech” is reaching a breaking point:

Whatever else it accomplishes, Occupy Wall Street is revealing distortions in our current understanding of the First Amendment. In recent decisions, the Supreme Court has protected Wall Street’s constitutional right to pour millions into political campaigns. But as presently construed, the First Amendment isn’t an obstacle when it comes to silencing the Occupiers. . . .

Instead of hiding behind obsolete court decisions, big city mayors must recognize that they are on the constitutional front-line. Michael Bloomberg is failing this test when he keeps Occupiers out of New York’s public parks and tolerates the arrests of dozens of protesters, providing an example for similar actions in Boston, Denver, and San Diego. In contrast, Antonio Villaraigoso is showing that leadership on behalf of the First Amendment is well within the realm of the politically possible. Los Angeles has not only avoided arrests, but seems to be expanding available public space as the protest swells. Similarly, the U.S. Parks police are on the right track in giving the demonstrators a four month extension on Freedom Plaza.

How to explain Mayor Bloomberg’s deviance from constitutional ideals? Maybe he’s one of the worried wealthy, realizing that he can only afford another 170 of his trademark $100 million dollar political campaigns with his fortune of $17 billion. Ensconced in an alternate reality of privilege, Bloomberg retails stories of struggling and put-upon banks. It is his very plutocratic disconnection from the daily life of his subjects that makes an extraordinary protest like OWS necessary.
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