privacy positioning
With the Citizens United decision so much in the news lately, it seems like the Supreme Court hasn’t gotten a lot right in recent years, but yesterday they scored a victory for personal privacy and a blow to our culture of digital surveillance when they decided that the use of warrantless GPS data by law enforcement officials violates the Fourth Amendment.
It’s a powerful but still limited judgment, though. Reports the Washington Post:
The unanimous opinion is relatively limited. It applies only to the placement and use of a GPS device that had to be attached to the suspect’s car. The justices said the device was an intrusion onto the suspect’s property, even if the car was being driven on public roads. The opinion doesn’t say anything about what would happen if the government were able to track the car through other electronic means, without ever touching the vehicle.
“The present case does not require us to answer that question,” writes Justice Antonin Scalia, succinctly leaving the matter for other poor schmucks to handle.
But it’s a big question. As technology becomes more advanced, law enforcement is increasingly collecting information from video cameras, cellphone signals, license plate readers and the like to build a picture of people’s activity, even without physically intruding on a suspect’s property.
That said, the justices appear eager to engage the larger issues when the moment presents itself.
What’s really interesting, though, is that a majority of justices on the court seem prepared to tackle that question themselves, should they ever be presented with a case.
In a concurring opinion joined by Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, Samuel Alito writes that “the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy” – an idea that has nothing to do with whether anyone physically touches a suspect’s property.
Sonia Sotomayor seems to go even further, suggesting that the court may need to consider something called the “third party doctrine,” the idea that if a person knowingly gives data to a third party, they lose their Fourth Amendment protections for that information. “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,” she writes.
And even Scalia says “it may be” that electronic surveillance “is an unconstitutional invasion of privacy”; he just doesn’t think the court needs to tackle that in the Jones case.
Even Scalia got this one at least a little bit right. As they say, even a broken clock tells the truth twice a day.
