By: Wassem Amin
On January 23, 2012, the United States Supreme Court, in U.S. v. Jones, issued a decision that was widely anticipated by the legal community to redefine the Fourth Amendment and adapt it to today’s rapid proliferation in technology. The issue in the case, as framed by the Court’s majority, was “whether the attachment of a Global Positioning System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constitutes a search or seizure within the meaning of the Fourth Amendment.”[i] The Court, unanimously, albeit for different and critically important reasons, held that it did—and therefore the warrant clause was triggered.[ii]
Reading the decision superficially, privacy advocates and news outlets hailed the decision and praised the court for upholding individual privacy rights.[iii] In reality, the majority skirted the critical legal issues underlying the case. Instead, it resurrected an arcane, long dismissed, Fourth Amendment framework and issued a narrow decision that fails to address the modern world’s rapid fire advancement of technology—specifically GPS technology.[iv] The majority chose to apply the outdated trespass and property rights doctrine to the search and seizure analysis and held that the Government actions in the case—the “installation of the GPS [device] on the vehicle to obtain information”—were a Fourth Amendment search because the Government “physically occupied private property for the purpose of obtaining information.”[v] Discounting the long-recognized Katz v. United States[vi] “reasonable expectation of privacy” test—taught in legal classrooms for over 40 years as the modern, and only, Fourth Amendment search and seizure test—the Supreme Court instead introduced an additional test, the Trespass Test,[vii] into legal scholarship. The Trespass Test, as articulated by Professor Orin Kerr, states that “[A] search occurs…when: (1) a trespass occurs, (2) the trespass is onto an enumerated item listed in the Fourth Amendment (persons, houses, papers, or effects), and (3) it occurs with the intent to find something or to obtain information.”[viii]
Unfortunately, the Court failed to see that, even before they issued the opinion, the technological advancements of GPS technology rendered their decision useless and instead relegated to the outdated factual scenario of the Jones’ 2006 arrest. The ubiquity of GPS devices in consumer cellular phones and other devices allow law enforcement to effectively track individuals without the need to physically install a GPS vehicle locator.[ix]Determining whether a trespass has occurred will not be necessary because there will be no physical intrusion. The Majority’s decision, therefore, will not apply in most situations.
Although there has been recent news of law enforcement’s use of GPS tracking devices installed on a target’s vehicle, just as the use of beepers have become obsolete, it will no longer be necessary to plant a physical GPS unit in order to track an individual. As the Court itself noted, there are over 300 million smartphones in the United States that have embedded GPS chips.[x]Additionally, GPS chips are standard in millions of the now-prevalent tablet computers and in almost every modern automobile. This rapid proliferation of technology has brought with it privacy concerns over the way information transmitted from these devices can be used.
The real value of U.S. v. Jones, lies in Justice Sotomayer’s lone concurrence, which combines aspects of the majority’s decision and Justice Alito’s separate concurrence, and may emerge to be the future of Fourth Amendment jurisprudence in this context. Sotomayor wrote separately to address what many scholars were hoping the Court will address—the future evolution of Fourth Amendment jurisprudence and how she would adapt it to our modern world.[xi]
The inadequacy of today’s holding is evidenced by an example from a current legal framework. There are three methods the government employ to compel cell phone providers to produce a customer’s information from a cell phone provider.[xii] First, the government can obtain a search warrant pursuant to Rule 41 of the Federal Rules of Criminal Procedure.[xiii] Under the Rule 41, a warrant is required to obtain information from a “tracking device.”[xiv] A tracking device is defined as “an electronic or mechanical device which permits the tracking or movement of a person or object.”[xv] Second, the government may obtain the “consent of the subscriber or customer” for the disclosure of the information.[xvi] Third, the government may use a process that requires a lesser showing than a warrant under section 2703(d) of the Stored Communications Act (“SCA”) (also known as a “2703(d) order”).[xvii] To obtain a 2703(d) order, the government must provide an affidavit showing “specific and articulable facts that there are reasonable grounds to believe” that the information sought from the cell phone provider “is relevant and material to an ongoing investigation.”[xviii] The judge then signs the order if he finds that the requisite factual showing has been made. This showing is much lower than that of probable cause—which is a warrant’s standard.[xix]
Guess which method is used most prevalently by law enforcement? Case in point: even though the SCA explicitly excludes tracking devices, the U.S. Department of Justice, aware of the law’s shortcoming, indicated in an internal manual titled “Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations” that a typical 2703(d) request should seek all of “[a]ll records and other information relating to the account(s) [of a cell phone subscriber] . . . including telephone records, . . . caller identification records, cellular site sector information, [and] GPS data.”[xx]
Further, there is information a cell phone subscriber may transmit that, although may not be GPS tracking information, may nonetheless unwillingly disclose the subscriber’s location—and under current Fourth Amendment jurisprudence may not be a “search.” For example, the ubiquity of GPS chips combined with cameras in cell phones allow the user to take a picture with her phone that inserts metadata disclosing the precise latitude and longitude of where the picture was taken. Imagine the million different scenarios where this may be incriminating.[xxi] Under the current framework, this information may be disclosed, if transmitted electronically, through a 2703(d) order.[xxii]
A trespass analysis would not be triggered because there is no physical intrusion in the wireless interception of data. Therefore, under the Katz test , the question becomes: Does the target of the investigation has a subjective expectation of privacy in [fill in the blanks] that society recognizes as reasonable? In a situation where law enforcement obtains a person’s movements gathered through GPS data obtained off his or her phone, in order to decide whether that action was a reasonable “search,” a judge must determine: (1) whether that person expects that information to be private and (2) that society views that expectation of privacy as a reasonable one.[xxiii]The same inquiry must be repeated if that information is a person’s metadata gained from the wireless transmission of an album of digital pictures, status updates on Facebook, websites visited, and so on and so forth.
The ambiguity of the current law necessitates that the inquiry be answered on a case-by-case basis by thousands of different magistrate judges—many of whom who have their own understandings as to what is private or not and may lack the necessary technological expertise to ascertain what kind of information is disclosed. If a judge uses current Fourth Amendment jurisprudence, the question might turn on whether the data obtained revealed information in a constitutionally protected area.[xxiv]For example, picture a scenario like this: a person, being tracked by GPS, leaves school then goes to work, then the grocery store, and maybe stops by a local strip club a few times a week. Morality aside, this information will not be constitutionally protected because they were all in public places.
Justice Sotomayor, and several federal judges, recognized that current jurisprudence needs to evolve to recognize one’s privacy interest in the sum of all their movements and in digitally-transmitted information. This theory, also known as the Mosaic theory, recognizes that the sum of a person’s movements and actions may disclose information that is intended to be private, despite the fact that they were in public places.[xxv]
Sotomayor’s concurrence addressed precisely that:
“I would take these attributes [the low cost of GPS monitoring and the extensive personal information it reveals] into account when considering the existence of a reasonable expectation of privacy in the sum of one’s public movements. . . .I would also consider the appropriateness of entrusting the Executive. . .a tool so amenable to misuse. . . .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. . . .But whatever the societal expectations, they can attain constitutionally protected states only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”[xxvi]
To those familiar with Fourth Amendment jurisprudence, Sotomayor’s discussion is nothing short of revolutionary and is exactly what should have been addressed by the majority. Let us hope that the Supreme Court will seize another opportunity soon to clarify and adapt the Fourth Amendment to today’s modern realities.
[iii] See, e.g., Dan Tynan, Supreme Court Ruling: Privacy Rights 1, Cops 0, PcWorld, January 24, 2012, available at http://www.pcworld.com/article/248657/supreme_court_ruling_privacy_rights_1_cops_0.html.
[vii] See Orin Kerr, The New Doctrine of What is A Fourth Amendment Search, THE VOLOKH CONSPIRACY, January 23, 2012, available at: http://volokh.com/2012/01/23/the-new-doctrine-of-what-is-a-fourth-amendment-search/.
[ix] See, e.g., Michael Isikoff, The Snitch in Your Pocket, Newsweek, Feb. 19, 2010, available athttp://www.newsweek.com/2010/02/18/the-snitch-in-your-pocket.html;
[x] SeeCTIA Consumer Info, 50 Wireless Quick Facts, http://www.ctia.org/consumer_info/index.cfm/AID/10323.
[xvi] See Orin S. Kerr, A User’s Guide to the Stored Communications Act, and a Legislator’s Guide to Amending It, 72 Geo. Wash. L. Rev. 1208, 1219 (2004) (provides an extensive interpretation of the SCA).
[xvii] See Steven V. Tregalia, Trailing Cell Phones: Courts Grapple with Requests from Prosecutors Seeking Prospective Tracking, N.Y.L.J., July 18, 2006, at 2-3 [hereinafter Tregalia, Trailing Cell Phones] (discussing how it is commonplace for prosecutors to gain various forms of CSLI pursuant to § 2703(d) orders).
[xx] U.S. Department of Justice, Computer Crime and Intellectual Property Section, Criminal Division, Searching and Seizing Computers and Obtaining Electronic Evidence in Criminal Investigations, 222 (3d ed. 2009), available at http://www.cybercrime.gov/ssmanual/ssmanual2009.pdf(last visited Jan. 25, 2012) (emphasis added).
[xxi] See, e.g., NPR, The End of Privacy http:// http://www.npr.org/series/114250076/the-end-of-privacy.