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
@Ed,it’s a good question and not just related to phones, since cars can come with GPS nav systems that communicate back to GM, for instance.
In that case since the cops don’t have to install the device, just go to where the device communicates the issue of physical trespass seems to be gone.
And while I think they then should be covered with wiretapping laws requiring warrants, I wonder….
Can you tell me how this would relate to cellphones that that have gps? Can law enforcement warrantlessly track you based upon the signals sent from your iPhone?
Okay, lawyers: I saw a rerun of NCIS recently, in which the crime investigators tasked a government sattelite to follow a car, rather presciently since it was headed for a remote area (which they could not have known) and could not have been easily tailed without raising the suspicion of the driver.
So, what happens with THAT? Is that different than a normal tail or stake out? Why does “short duration” not violate privacy? After all, even a single-trip tail might follow a husband to an illicit affair the cops did not know about, but could then use against him (like helping them get his wife angry enough to testify against him).
I’m glad about this also. I don’t think this will stop the govt. from still doing exactly what they did before but there is a really important aspect of saying something isn’t legal. Too many illegal things have been made “legal” by the US govt. I’m glad any time that doesn’t happen!
It is good news, no matter who voted for Scalia or Alito.
Swarthmore,
You are correct that Sotomayor was a beneficiary of her intelligence and hard work, not of equal rights benefits. Is it because she is a woman or a Latina or both?
Wow, and Hooray. I admit I did not expect it, and unanimously no less. I really thought the conservatives were going to argue that this is no different than commonly used public observation without a warrant; e.g. a stake out of a building or tailing of a suspect.
I am glad I was wrong.
Sotomayor praises Alito’s “incisively” written concurrence but says it doesn’t go far enough then goes with Scalia’s narrower analysis because it’s all that’s necessary in this case?
That’s the difference between running a seam and simply basting. Basting uses less thread and is quicker but if one wants the garment to wear well and long, one uses more thread and spends more time running the seam.
Sotomayor was summa at Princeton and editor of the Yale Journal. Don’t see that she is a “beneficiary of equal rights”.
Amazing for an outfit that exists in infamy and fiction. The Black robe criminals have no sanction from the Living Souls of this Land. They exist un-purely by TDC and corporate brainwashing, nothing at all that is Natural. Soon they will all be incarcerated.
http://www.scribd.com/doc/21486707/Notice-of-Exigency
Sotomayor is a pull the ladder up beneficiary of equal rights. Scalia always worships original intent– of the Framers of the Constitution up through the Bill of Rights. He is unreconstructed on the 14th Amendment and the origiinal intent of those Framers gets no respect. One has to consult the Twightight Zone for the original intent of the Framers when it comes to GPS. All in all though the decision came out better than anticipated.
It dawned on the Justices that if the cops could do this GPS thing to you and me then anyone like the media could bug their cars with GPS and guys like Clarence would end up in trouble with the wife when the chickens came home to roost.
Thanks for the report Professor Turley.
A small drink of pure water in the desert on a hot day seems uniquely satisfying.
This decision is remarkable in that sense.
Whew!
We can be tired and we can be relieved at the same time.
It’s great to have the decision of course. But I suspect that if the gov’t squeaks “national security”, the process of getting a warrant will be as meaningless and routine, and perhaps even honored in the breach with post hoc validation like FISA warrants.
Still, to repeat, it’s important to have even a small spoke stuck in the wheel of the ‘great surveillance state’ juggernaut.
I am astonished….Alito….He must not have liked all of the information being published about him…..He is not a Private Citizen, hence does not enjoy the Protections generally afforded Private Citizens….
Maybe I’m confused, but to me, Scalia’s opinion feels like more of a victory than Alito’s. I feel that Scalia is saying that you get both the trespass doctrine protections and the test under Katz. Seems to me that we get more privacy with Scalia’s interpretation than Alito’s.
Am I wrong?
Good news this gloomy Monday.
“Notably, Ginsburg, Breyer and Kagan joined Alito not Sotomayor. They were right to do so.” (Jonathan Turley)
“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.” (Jonathan Turley)
I recall her ties to law enforcement… A number of them endorsed her.
http://seattletimes.nwsource.com/html/politics/2009317823_apussotomayorendorsement.html
Law enforcement groups endorse Sotomayor
Originally published June 9, 2009
Eight national law enforcement organizations are endorsing President Barack Obama’s Supreme Court nominee, Judge Sonia Sotomayor.
WASHINGTON —
Excerpt:
Eight national law enforcement organizations are endorsing President Barack Obama’s Supreme Court nominee, Judge Sonia Sotomayor.
The groups announced their support for the judge at the White House. Manhattan District Attorney Robert Morgenthau said Sotomayor … is a highly qualified nominee who will be an “able champion of the law.”
Vice President Joe Biden thanked the organizations for supporting Sotomayor, and said her “lifelong commitment to law enforcement is hard to argue with.” She once worked as an assistant prosecutor in Morgenthau’s office.
+1!
Amazing.