January 24, 2012
Yesterday, the Supreme Court issued its ruling in U.S. v. Jones.
The landmark case decided the question of whether the government attaching a Global Position System (GPS) tracking device to a person’s car and using it to monitor the vehicle’s movements constitutes a search under the Fourth Amendment.
The good news, at least for those of us who wouldn’t really care to be tracked at all times by the U.S. government, is that the Court ruled unanimously in the affirmative.
The bad news is that the Court didn’t really give very clear insight into the broader implications of its decision.
The unanimous decision was split between two blocs – one led by Justice Antonin Scalia, and the other by Justice Samuel Alito.
The divergence between the two groups can be summed up as their different answers to this question:
“Why was the GPS tracking by the government unconstitutional?”
Scalia’s group – which formed the majority opinion and also included Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor – said that the unconstitutionality stemmed from the physical trespass by the government affixing the device to the car (and that no further analysis was required).
Alito’s group – consisting also of Ginsburg, Breyer, and Kagan – said that the physical intrusion is irrelevant.
Instead, Alito asserted that the government search had invaded Jones’ “reasonable expectation of privacy,” adhering closely to the standard established in 1967’s Katz v. U.S.
Katz established that the government may not intrude – physically or electronically – into any place that a person has “a constitutionally-protected reasonable expectation of privacy” without a warrant.
You may be asking yourself what the difference is between the two camps.
In short, it comes down to whether a government trespass needs to occur before an intrusion is a “search” under the Fourth Amendment.
Scalia, in a typical Scalia fashion, cites a 247-year-old English case (Entick v. Carrington) to infer that the drafters of the Fourth Amendment intended to protect citizens against the government physically occupying private property for the purpose of obtaining information.
This “trespassory test,” as Scalia calls is, is the foundational one of Fourth Amendment search and seizure law, and the Katz reasonable-expectation-of-privacy test added to it, rather than replaced it.
Here’s the real question: Is Scalia then supporting the notion that a physical trespass is always required?
My thoughts are that he is, despite the fact that he doesn’t explicitly say so.
Aside from subtle hints sprinkled throughout the Scalia’s opinion, the fact that Alito – a strong privacy advocate – would feel the need to advocate so strongly for the Katz test says a lot in itself.
Think about it: if Scalia had clearly asserted that either form of intrusion was independently a violation, there wouldn’t have been any separate concurrences.
Instead, Alito’s concurrence fervently advocates that, in this case, the government invasion of privacy under the Katz test is what’s relevant.
Unfortunately for privacy advocates, Scalia’s position was the majority opinion, and it may limit Fourth Amendment protections against government searches and seizures in electronic tracking cases without a physical government intrusion.
Or, at least, it would have, if not for the wild card of Justice Sotomayor’s separate concurrence.
Why is this concurrence so significant?
Because it did clearly support that broader interpretation that Scalia failed to – that either a physical government trespass or an invasion of an area where one has a reasonable expectation of privacy requires a warrant.
Sotomayor wrote the concurrence to clarify this point, rather than to raise a point of disagreement with the majority opinion, which she joined in its entirety.
This has significant implications for the future electronic surveillance cases that are sure to come the Court’s way.
Because Scalia didn’t explicitly say that a trespass is required (which he probably did to get Sotomayor’s vote, and the majority along with it), then future cases cannot cite to U.S. v. Jones to support that notion.
Instead, ironically for Scalia, because of Sotomayor’s separate concurrence “clarifying” the majority’s holding on this point, Jones will likely be cited to support her position.
While this is definitely a welcome development for privacy advocates, perhaps the better one is the revelation of a Court majority supporting broader privacy rights against hi-tech government intrusions.