U.S.S.Ct: GPS Tracking is a Search

This morning the U.S. Supreme Court issued a Fourth Amendment opinion, U.S. v Jones, finding that GPS vehicle tracking is a search.  Scalia and 3 other justices think it’s a search because the physical trespass of a vehicle (to which the GPS tracker was attached) was something the original founders would have understood to fall within the Fourth Amendment.  That is, this was a physical trespass, therefore it was a search.  Alito and 3 other justices think that applying an originalist understanding to modern technology is laughably absurd. The test the Alito concurrence would apply is whether a person’s reasonable expectation of privacy is violated.  Sotomayor is the swing vote.  She believes that the trespass test is a Constitutional minimum but also that a more expansive privacy test should be used to account for our modern world:

JUSTICE ALITO’s approach, which discounts altogether the constitutional relevance of the Government’s physical intrusion on Jones’ Jeep, erodes that longstanding protection for privacy expectations inherent in items of property that people possess or control. By contrast, the trespassory test applied in the majority’s opinion reflects an irreducible constitutional minimum: When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.

Nonetheless, as JUSTICE ALITO notes, physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion’s trespassory test may provide little guidance. But “[s]ituations involving merely  the transmission of electronic signals without trespass would remain subject to Katz analysis.” As JUSTICE ALITO incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with JUSTICE ALITO that, at the very least, “longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy. . .

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 greatdeal 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 “diminution of privacy” as “inevitable,”, 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.

Sotomayor concurrence, U.S. v Jones

Stealing shamelessly from SCOTUSblog, the go-to Supreme Court website, here’s the reporting from around the blogosphere:

By Kali Borkoski on Jan 23, 2012 at 2:55 pm

This morning the Court issued its decision in the GPS tracking case United States v. Jones, holding that attaching a GPS device to a vehicle and then using the device to monitor the vehicle’s movements constitutes a search under the Fourth Amendment. Although the Justices were unanimous in upholding the opinion by the U.S. Court of Appeals for the District of Columbia Circuit, the reasoning on which they relied to reach that conclusion varied.  Lyle Denniston explained the decision in detail for this blog, while Greg Stohr covered the case for Bloomberg.  Additional coverage is available from Adam Liptak at the New York Times, Robert Barnes and Cecilia Kang of the Washington Post, Joan Biskupic of USA Today, Mike Sacks of the Huffington Post, Kashmir Hill at Forbes, Jesse Holland and Pete Yost of the Associated Press (via MSNBC), Ariane de Vogue of ABC, James Vicini of Reuters, Tony Romm of Politico, Jim Harper of Cato@Liberty, and Brendan Sasso at The Hill’s Hillicon Valley blog.

NRP’s The Two–Way blog features a discussion on the case between Nina Totenberg and Paul Brown.

At the Volokh Conspiracy, Orin Kerr has several posts on the opinion here, here, and here.