Court Saves Us from Big Brother - but for How Long?
On January 23, 2012, the United States Supreme Court decided what had been widely heralded as the most important 4th Amendment search and seizure case in a generation.
In United States v. Jones, the federal government took the position that it could install a GPS tracking device on any person's car, for any reason or no reason at all, and track the car's movements for weeks without getting a warrant. (In Jones, the government used the GPS tracking data to support a prosecution for drug trafficking).
There was a moment at oral argument either amusing or horrifying depending on your outlook, when Chief Justice Roberts, among the most conservative and "law and order" judges the Court has seen, expressed apparent astonishment that the Executive Branch was taking the position that it could even install such a device on Justice Roberts' vehicle without a warrant!
Perhaps it is not surprising after this exchange, that all 9 justices unanimously rejected the government's "big brother" position and held that the federal agents violated Mr. Jones's rights by installing the GPS tracking device on his car and tracking his movements without a valid warrant.
More sobering, however, is that the Court broke down into factions with 4 of the Justices adhering to a 17th and 18th century property law analysis of the issue - fixating on the actual "trespass" to Jones's vehicle that occurred when police attached a device to its undercarriage. Interestingly, Bush II appointee Justice Alito, usually marching in lockstep with the most "originalist" justices on the Court, joined the more moderate justices and in fact wrote the concurring opinion that criticized the Court for anchoring our privacy rights to ancient property law constructs.
As technology continues to progress, and especially as the nature of modern technology forces us to share virtually all of our most private information with soulless corporate and governmental institutions, our privacy will be irretrievably lost if the Constitution is interpreted in a strained and antiquated fashion to apply only to the tangible, material physical property in our possession and immediate control.
Every time we connect to a network, place our correspondence and address books and calendars and documents and photos and home videos on Google or other "cloud" applications, back up to online backup services, place a call, text or email message, our most personal information leaves our "possession" and is entrusted to storage and safekeeping by third parties. In other words, the government can learn the most intimate details about our lives, without setting so much as a foot or a fingerprint on any of our private property.
Thus, Justice Sotomayor revealed herself to be the Court's true guardian of privacy rights in the internet age by writing a separate opinion that embraced the 4th Amendment as safeguarding both property rights AND suggested the expansion of the "reasonable expectation of privacy" construct. She wrote: "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." In other words, just because Facebook possesses and sees an otherwise private message that we send to another, doesn't mean that the government should get to see it too.
The bottom line is this: a majority of the Justices on the Court declined to make a broader announcement that we as Americans have a "reasonable expectation of privacy" that the government will not trace our movements for a month without judicial authorization. Thus, the Jones decision, while reaching the right outcome, will not curb the government's zeal to use 21st century technologies to render our sense of privacy and security nothing more than an archaic illusion.
Read the Jones decision
- Ted Lothstein
In United States v. Jones, the federal government took the position that it could install a GPS tracking device on any person's car, for any reason or no reason at all, and track the car's movements for weeks without getting a warrant. (In Jones, the government used the GPS tracking data to support a prosecution for drug trafficking).
There was a moment at oral argument either amusing or horrifying depending on your outlook, when Chief Justice Roberts, among the most conservative and "law and order" judges the Court has seen, expressed apparent astonishment that the Executive Branch was taking the position that it could even install such a device on Justice Roberts' vehicle without a warrant!
Perhaps it is not surprising after this exchange, that all 9 justices unanimously rejected the government's "big brother" position and held that the federal agents violated Mr. Jones's rights by installing the GPS tracking device on his car and tracking his movements without a valid warrant.
More sobering, however, is that the Court broke down into factions with 4 of the Justices adhering to a 17th and 18th century property law analysis of the issue - fixating on the actual "trespass" to Jones's vehicle that occurred when police attached a device to its undercarriage. Interestingly, Bush II appointee Justice Alito, usually marching in lockstep with the most "originalist" justices on the Court, joined the more moderate justices and in fact wrote the concurring opinion that criticized the Court for anchoring our privacy rights to ancient property law constructs.
As technology continues to progress, and especially as the nature of modern technology forces us to share virtually all of our most private information with soulless corporate and governmental institutions, our privacy will be irretrievably lost if the Constitution is interpreted in a strained and antiquated fashion to apply only to the tangible, material physical property in our possession and immediate control.
Every time we connect to a network, place our correspondence and address books and calendars and documents and photos and home videos on Google or other "cloud" applications, back up to online backup services, place a call, text or email message, our most personal information leaves our "possession" and is entrusted to storage and safekeeping by third parties. In other words, the government can learn the most intimate details about our lives, without setting so much as a foot or a fingerprint on any of our private property.
Thus, Justice Sotomayor revealed herself to be the Court's true guardian of privacy rights in the internet age by writing a separate opinion that embraced the 4th Amendment as safeguarding both property rights AND suggested the expansion of the "reasonable expectation of privacy" construct. She wrote: "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." In other words, just because Facebook possesses and sees an otherwise private message that we send to another, doesn't mean that the government should get to see it too.
The bottom line is this: a majority of the Justices on the Court declined to make a broader announcement that we as Americans have a "reasonable expectation of privacy" that the government will not trace our movements for a month without judicial authorization. Thus, the Jones decision, while reaching the right outcome, will not curb the government's zeal to use 21st century technologies to render our sense of privacy and security nothing more than an archaic illusion.
Read the Jones decision
- Ted Lothstein
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