Keeping up with the (U.S. v.) Joneses: Shifting Gears from Manual to Automatic

by Margot | January 25, 2012 | Other | 2 Comments

ISP Resident Fellow Bryan Choi has the following thoughts on U.S. v. Jones:

My take on U.S. v. Jones is that the majority has provided a conclusion searching for an opinion, while Justice Sotomayor has provided an opinion searching for a conclusion.

The majority could sense that warrantless long-term GPS tracking ought to be disallowed, but it couldn’t find a satisfactory hook on which to rest that intuition. The use of physical trespass doctrine was a dodge, a single-serving answer that resolved this case and no other.

Nor should we hail Justice Sotomayor’s opinion as a beacon of wisdom. All she offered was a dramatic soundbite — that the 3rd party doctrine ought to be “reconsidered” if not outright rejected – which may please privacy advocates but fails to suggest any workable alternative. Where would police investigations begin if no one were allowed to share information about anyone else without a suitable paper trail? Imagine the bureaucracy and delay that would ensue!

Justice Alito’s opinion cut to the heart of the matter: it is the relationship between the individual and government that defines the bounds of the Fourth Amendment. An individual has a real (not just reasonable) expectation of privacy in some things, and the government must obtain a warrant to penetrate that privacy. That expectation of privacy is not tethered to the realm of physical objects, even if that seems like a convenient, brightline rule.

One way to look at the issue is to hone in on the type of data that is shared: manual or automatic. Any conversation is subject to being repeated after the fact, even if it is originally held in the deepest depths of one’s home, and an undercover informant is no different in that respect than any other participant. But we do not expect our informal conversations to be recorded verbatim, which helps explain our intuition against wiretaps. Locational data may be the same way. We can be tailed by any physical person, but we simply do not expect precise GPS data to be recorded and accessible to the police without a warrant. Under that logic, the beeper cases would be incorrectly decided.

The other way to approach the issue might be to focus on human agency. In tort law, causation can be determined by looking for the last human action that could have set off the chain of events. If A is pushed off his bike by B, then B is culpable; but if A falls of his own accord, then B is not implicated. Importing that idea to the current context requires an inversion. When information is shared with another person, that individual is free to share the information with others including government. But when the sharing of information is automated, as it was with the GPS device in Jones, then the police cannot access that data set without a warrant. It should not matter that the data set is owned by a third party, because the automation took place first. Contrast that with a case where a neighbor records all your comings and goings, and collates that data into an electronic spreadsheet; our intuition would suggest that the spreadsheet would be available to the police without a warrant.

When (not if) the Court is forced to confront this issue again, I suspect Justice Alito’s opinion will prove to be the most enduring of the three.

Comments