Monday, January 23, 2012

Attaching GPS Device to Car Is a Search, US Supreme Court Says

US v. Jones: The Court unanimously holds that the attaching a GPS device to a car and monitoring its movements for 28 days was a search. However, the "unanimous" court produced multiple opinions.
Scalia, joined by Roberts, Kennedy, Thomas and Sotomayor, go with an "original intent" rationale, stating: "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." Because the government trespassed on private property to install the device, it was a search. This does not do away with the Katz reasonable expectation of privacy test; that test augmented the common-law trespassory test that preceded it.
Sotomayor's concurrence addresses some of the search and seizure issues associated with electronic communications and media, noting that "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."
Alito, with Ginsburg, Breyer and Kagan, would stick with the Katz expectation of privacy test. In their view, the problem was how long the government monitored the vehicle, saying that, in light of government failure to to enact statutes regulating GPS technology for government use, "The best that we can do in this case 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. 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. See Knotts, 460 U. S., at 281–282. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy." Thus, I guess in the Alito, et al., view, if state and federal governments had laws in place saying that the government could monitor everyone for as long as they wanted whenever they wanted, there would be no reasonable expectation of privacy any more.