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.