In a significant decision involving privacy rights and digital data, the U.S. Supreme Court held on Monday that “the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search’” within the meaning of the Fourth Amendment.  United States v. Jones, No. 10-1259, 565 U.S. ___ (Jan. 23, 2012).

In so holding, the Court affirmed the 2010 judgment of the D.C. Circuit reversing respondent Antoine Jones’ conviction on the grounds that the government carried out an unconstitutional search by using the GPS device in violation of the terms of the warrant the government obtained before installing the device.  The Supreme Court did not rule on the reasonableness of the search, noting: “We have no occasion to consider this argument. The Government did not raise it below, and the D. C. Circuit therefore did not address it.  . . .  We consider the argument forfeited.”  Slip op. at 12.

Although the nine justices unanimously agreed that the government’s particular use of the GPS device constituted a search under the Fourth Amendment, they disagreed on the appropriate constitutional analysis:

• The five-justice majority (led by Justice Scalia) relied on an analytical framework based on physical intrusion into an individual’s property rights.
• Four justices (led by Justice Alito) rejected the property-based framework as anachronistic and ill-suited to an era of digital surveillance and relied instead on an individual’s reasonable expectations of privacy.
• Justice Sotomayor (who also joined Justice Scalia’s opinion) suggested that while a property-based analysis was appropriate for some types of surveillance techniques (including the methods at issue in this case), non-physically-intrusive surveillance should be analyzed through a privacy-based framework and the current privacy framework may need to be revised.

The case involves Antoine Jones, a nightclub owner sentenced to life in prison for conspiracy to sell cocaine.  Evidence used against him was obtained over the course of four weeks through a GPS device government agents installed on the underbody of his wife’s Jeep.  The agents obtained a warrant but violated two of the warrant’s restrictions by failing to install the GPS device within 10 days and installing the device outside of the District of Columbia.  The United States Court of Appeals for the District of Columbia reversed Mr. Jones’ conviction, ruling that it had been secured with evidence obtained through warrantless use of the GPS device.  United States v. Maynard, 615 F. 3d 544 (2010) (Aug. 6, 2010) (“Society recognizes Jones’s expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation.”).

Justice Scalia: Search as a Government Trespass on Private Property

Writing for the Court in an original-intent-flavored opinion (and joined by Chief Justice Roberts and Justices Kennedy, Thomas and Sotomayor), Justice Scalia rejected the government’s argument that Mr. Jones had no reasonable expectation of privacy — an analytical framework introduced by the court in Katz v. United States, 389 U. S. 347 (1967) – in the areas of the vehicle accessed by government agents.  Given the manner in which the government carried out the surveillance, Justice Scalia wrote, the historically-rooted Fourth Amendment analysis based on trespass on private property was both appropriate and sufficient:

It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted.  . . .

. . .

. . .  [W]e need not address the Government’s contentions, because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation. At bottom, we must “assur[e] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted.”  . . .  As explained, for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (“persons, houses, papers, and effects”) it enumerates.  . . .

Slip op. at 4-5 (emphasis added; footnote omitted).

Despite his insistence on a property-based analysis, Justice Scalia did not repudiate Katz‘s reasonable-expectation-of-privacy framework but rather concluded that the property-trespass framework sufficed.  Indeed, Justice Scalia acknowledged that electronic surveillance without a physical trespass on property might also violate the Fourth Amendment as “an unconstitutional invasion of privacy,” but in his view “the present case does not require us to answer that question.”  Slip op. at 11.

Justice Alito: Search as a Government Violation of Reasonable Expectations of Privacy

In an opinion concurring in the judgment, Justice Alito (joined by Justices Ginsburg, Breyer and Kagan) expressed doubt about the majority opinion’s property-trespass analysis because “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.”  The proper analytical approach, Justice Alito wrote, should follow the analytical framework of Katz, where the Court held that warrants were required before FBI agents could wiretap a call made from a public telephone booth because “the Fourth Amendment protects people, not places.”  This analytical framework requires “asking whether respondent’s reasonable expectations of privacy were violated by the long-term monitoring of the movements of the vehicle he drove.”  Alito slip op. at 2 (emphasis added).

In Justice Alito’s view, a property-based analysis creates more problems than it solves because it is not up to the analytical task of addressing surveillance techniques that involve no violation of property rights.  At the same time, he acknowledged, even a privacy-based analysis can be problematic as people’s expectations of privacy change to adapt to changing technologies and capabilities — particularly given the rapid development of new technologies and products that collect personal data, including smart phones with a GPS device, automatic toll-collection systems and CCTV monitoring.

In such “circumstances involving dramatic technological change,” he continued,

the best solution to privacy concerns may be legislative.  . . .  A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.

Alito slip op. at 13.  Nonetheless, for purposes of deciding the issues currently before the court, “The best that we can do . . . is to apply existing Fourth Amendment doctrine and to ask whether the use of GPS tracking in a particular case involved a degree of intrusion that a reasonable person would not have anticipated.”  Id.  Distinguishing between short-term and longer-term surveillance — but without identifying the line separating the two — Justice Alito concluded that the government’s actions in this case violated Mr. Jones’ reasonable expectations of privacy and thus constituted a Fourth Amendment search:

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.  . . .  In this case, for four weeks, law enforcement agents tracked every movement that respondent made in the vehicle he was driving. We need not identify with precision the point at which the tracking of this vehicle became a search, for the line was surely crossed before the 4-week mark.  . . .

Id. (emphasis added).

Justice Sotomayor: Digital Privacy Challenges from Changing Technology May Require Changes to Privacy Doctrine

In addition to joining the majority’s opinion, Justice Sotomayor wrote a concurring opinion emphasizing that non-intrusive surveillance must be analyzed through a privacy-based framework and advances in technical capabilities may alter the public’s expectations of privacy.  In contrast to Justice Alito’s distinction between short- and long-term surveillance, in Justice Sotomayor’s view even some short-term monitoring involving “some unique attributes of GPS surveillance relevant to the Katz analysis” merits “particular attention” (a reference to the “mosaic” theory of privacy discussed by the D.C. Circuit, see 615 F.3d at 561-63, and sometimes used by the government to oppose Freedom of Information Act requests):

GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.  . . .  The Government can store such records and efficiently mine them for information years into the future.  . . .

. . .

. . .  I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.  . . .

Sotomayor slip op. at 3-4.

Justice Sotomayor also called into question the validity of the so-called “third-party-disclosure doctrine” – the idea that once you provide information to a third party like a bank or phone company, you waive your Fourth Amendment protection (and perhaps other privacy rights) for that information. In a digital environment in which people routinely provide personal information to businesses and others in order to carry out everyday activities, she suggested, an individual may nonetheless reasonably retain some expectation of privacy in the disclosed information:

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.  . . .  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.  . . .  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.

Id. at 5.  Noting that constitutionally-protected status would require that secrecy not be deemed a “prerequisite for privacy,” Justice Sotomayor concluded: “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.”  Id. at 5-6.^{[Footnote 1]}

*      *      *

Notwithstanding the divergent analytical approaches, the Court’s decision is an important pro-privacy ruling, not least because even the most conservative of the justices rejected the government’s arguments that the GPS tracking was not a Fourth Amendment “search.”^{[Footnote 2]}  As Justices Alito and Sotomayor pointed out in their concurring opinions, the property-trespass theory is insufficient to reach some digital surveillance methods already available to the government, essentially guaranteeing that sooner or later the Court will forced to analyze a challenged government surveillance technique solely on reasonable-expectations grounds; and even Justice Scalia acknowledged the possibility that “achieving the same result [as extended visual observation] through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy . . . .”

The growing capacity of technology-based surveillance to collect, store and analyze vast amounts of data about a person’s actions — whether over a short or longer time period — provides the government with capabilities that significantly exceed the reach of their analog counterparts.  That’s not to say that an expectations-focused analysis will necessarily make law enforcement’s job more difficult.  Expectations of privacy change over time and vary from one context to another; and after all, many people seem willing to expose a broad array of personal information to third parties — at times in excruciating detail — as they bank online, make online purchases and spend time on social, gaming and other digital networks.  But as Justice Sotomayor suggested, disclosures to third parties are also context-specific and should not automatically be deemed to make an expectation of privacy unreasonable in other contexts.

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Footnotes
1 [Back to Post]    Courts have already begun to carve out exceptions to the third-party-disclosure doctrine for certain types of digital information disclosed to third parties. See, e.g., In re Application for Order Authorizing the Release of Historic Cell-Site Information, 10-MC-897 (NGG) (E.D.N.Y. Aug. 22, 2011) (despite provisions of Stored Communications Act, 18 U.S.C. §§2703(c)(1), (d), request for at least 113 days of cumulative cell-site-location records for an individual’s cell phone constitutes a search under the Fourth Amendment requiring search warrant and requisite showing of probable cause; exception to the third-party-disclosure doctrine applies to cumulative cell-site-location records “because cell-phone users have a reasonable expectation of privacy in cumulative cell-site-location records, despite the fact that those records are collected and stored by a third party.”). 

2 [Back to Post] One wonders whether this was prompted at least in part by the suggestion at oral argument that, taken to its logical conclusion, the government’s position would even permit GPS tracking of the Justices’ own vehicles without triggering the protections of the Fourth Amendment. See transcript of Nov. 8, 2011 oral argument at 9-10; a recording of the oral argument is available here.