I previously wrote about the pending case of United States v. Jones and the effort of the Administration to establish precedent allowing the government to follow citizens with Global Positioning Devices (GPS) without any showing of probable cause. I am happy to report that the Court has ruled unanimously against the government and found the practice to be unconstitutional under the fourth amendment. It is a stinging defeat for the Obama Administration but a roaring victory for privacy and civil liberties at a time when good news is rare.

In my prior column, I discussed the limits of the Katz test created in Katz v. United States, 389 U.S. 347. Much of the debate between the justices focuses on this test and its progeny.

The Court divided between a majority opinion penned by Associate Justice Antonin Scalia, concurrences by Associate Justice Sotomayor and Associate Justice Alito.

Scalia emphasizes that privacy protections are broader than the “reasonable expectation of privacy” test:

The Government contends that several of our post-Katz cases foreclose the conclusion that what occurred here constituted a search. . . . But as we have discussed, the Katz reasonable-expectation-of-privacy test has been added to, not substituted for, the common-law trespassory test. The holding in Knotts addressed only the former, since the latter was not at issue. .

It is that reliance on the common-law trespass cases that causes one division on the Court. The application of what the concurrence called “18th-century tort law” is contested by Scalia as “a distortion. What we apply is an 18th-century guarantee against unreasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted. The concurrence does not share that belief. It would apply exclusively Katz’s reasonable-expectation-
of-privacy test, even when that eliminates rights that previously existed.”

Notably, Ginsburg, Breyer and Kagan joined Alito not Sotomayor. They were right to do so. Alito’s opinion suggests that Scalia’s logic comes uncomfortably close to the old trespass doctrine as the basis for the Fourth Amendment — a concern that I agree with and previously wrote about in the column. Indeed, Alito expressed the same concern over how Katz could lay the seeds for privacy’s destruction:

Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.

Alito questioned Scalia’s reliance on the original intent when applied to such a modern context for surveillance. However, Scalia responded:

JUSTICE ALITO’s concurrence (hereinafter concurrence) doubts the wisdom of our approach because “it is almost impossible to think of late-18th-century situations that are analogous to what took place in this case.” Post, at 3 (opinion concurring in judgment). But in fact it posits a situation that is not far afield—a constable’s concealing himself in the target’s coach in order to track its movements. Ibid. There is no doubt that the information gained by that trespassory activity would be the product of an unlawful search—whether that information consisted of the conversations occurring in the coach, or of the destinations to which the coach traveled.
In any case, it is quite irrelevant whether there was an 18th-century analog. Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a “search” within the original meaning of the Fourth Amendment. Where, as here, the Government obtains information by physically intruding on a constitutionahas undoubtedly occurred.

Alito has the better argument here though he does not truly plug the holes in Katz much as simply recognizing those holes. Unfortunately, Sotomayor gives Scalia the fifth vote to make his analysis the majority opinion. Previously I raised objections to Sotomayor’s nomination due to her views on privacy and free speech. What is strange is that her concurrence has language that recognizes the problems identified by Alito but still concurs with Scalia.

Here is the opinion: 10-1259