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
44 thoughts on “Supreme Court Unanimously Rejects Obama Administration’s Effort to Conduct Warrantless GPS Searches”
Supremes to Congress: Bring privacy law into 21st century
by Berin Szoka and Charlie Kennedy
January 29, 2012 8:01 PM PST
And old Truthout interview with Kiriakou in a new article:
CIA Officer Charged With Leaking Classified Information to Journalists Gave Exclusive Interview to Truthout Two Years Ago
Monday 23 January 2012
by: Jason Leopold
This has NDAA written all over it. In addition to the heinous crime committed by the US Govt. on Padilla, these are principles of denying justice to anyone imprisoned and tortured under NDAA.
“The Obama DOJ vigorously defended Rumsfeld, arguing (a) that Rumsfeld is entitled to immunity on the ground that he had reason to believe his acts were legal and (b) an American citizen has no right to sue
a government official for the treatment he receives as a designated “enemy combatant” — even if the treatment in question is torture and prolonged imprisonment without charges.”
Every wealthy and connected criminal can make the assertion that their lawyer told them their crimes were legal. That’s why they shop around for opinions till they get the “right” one. Item b speaks for itself. It is the groundwork of what will come as well as the imprint of former crimes.
Would it surprise you in the least? Not from what I know…
Did you see Anonymous shut down the Motion Picture Industry’s web site as well as the FBI’s….in retaliation for arresting Megaupload.com leader….maybe that will get them going…..All in response to SOPA…
“They had to have a fall guy….maybe….” -AY
It’s one crazy world, isn’t it?
(Worked all night… must sleep…)
They had to have a fall guy….maybe….
John Kiriakou’s book:
The Reluctant Spy: My Secret Life in the CIA’s War on Terror
John Kiriakou and the Real Story Behind Obama’s Latest Leak Crackdown
How a mysterious discovery in a Gitmo detainee’s cell led to the prosecution of the ex-CIA officer.
—By Nick Baumann and Asawin Suebsaeng
Mon Jan. 23, 2012
That is an interesting question about GPS and cellphones….
I know you meant REJECTS GEORGE W BUSH’s ADMIN – PATRIOT ACT POLICIES. This is the only fabricated article of many which mentions Obama tied to this. Obama did not have anything to do with the PATRIOT ACT. Nice try Bafoon.
Off Topic: An interesting article by Glenn Greenwald at Salon today:
Rules of American justice: a tale of three cases
Laws are used to shield egregious war crimes while severely punishing those who publicly discuss them
By Glenn Greenwald
Developments in three legal cases, just from the last 24 hours, potently illuminate the Rules of American Justice. First, the Justice Department yesterday charged a former CIA agent, John Kirakou, with four felony counts for having allegedly disclosed classified information to reporters about the CIA’s interrogation program. Included among those charges are two counts under the Espionage Act of 1917, based on the allegation that he disclosed information which he “had reason to believe could be used to the injury of the United States and to the advantage of any foreign nation.” Kirakou made news in 2007 when he told ABC News that he led the team that captured accused Terrorist Abu Zubaydah and that the techniques to which Zubaydah was subjected, including waterboarding, clearly constituted “torture,” though he claimed they were effective and arguably justifiable. He’s also accused of being the source for a 2008 New York Times article that disclosed the name of one of Zubaydah’s CIA interrogators.
What’s most notable here is that this is now the sixth prosecution by the Obama administration of an accused leaker, and all six have been charged under the draconian, World-War-I era Espionage Act. As EFF’s Trevor Timm put it yesterday: this is the “6th time under Obama someone is charged with Espionage for leaking to a journalist. Before Obama: only 3 cases in history.” This is all accomplished by characterizing disclosures in American newspapers about America’s wrongdoing as “aiding the enemy” (the alleged enemy being informed is Al Qaeda, but the actual concern is that the American people learn what their government is doing). As The New York Times‘ Charlie Savage wrote this morning, Obama has brought “more such cases than all previous presidents combined,” and by doing so, has won the admiration of the CIA and other intelligence agencies which, above all else, loathe transparency (which happens to be the value that Obama vowed to provide more of than any President in history).
Also yesterday in American justice, a three-judge panel of a federal appellate court in Virginia upheld the dismissal of a lawsuit brought against Donald Rumsfeld and other Bush officials by Jose Padilla, the U.S. citizen who was imprisoned for almost three years without charges or even a lawyer and was systematically tortured to the point of permanent mental incapacitation. Padilla sued the former Defense Secretary on the ground that he had authorized Padilla’s illegal imprisonment and torture. The Obama DOJ vigorously defended Rumsfeld, arguing (a) that Rumsfeld is entitled to immunity on the ground that he had reason to believe his acts were legal and (b) an American citizen has no right to sue a government official for the treatment he receives as a designated “enemy combatant” — even if the treatment in question is torture and prolonged imprisonment without charges.
FWIW, another take,
United States v. Jones is a Near-Optimal Result
By Paul Ohm – Posted on January 23rd, 2012 at 1:57 pm
This morning, the Supreme Court handed down its decision in United States v. Jones, the GPS tracking case, deciding unanimously that the government violated the defendant’s Fourth Amendment rights when it installed a wireless GPS tracking device on the undercarriage of his car and used it to monitor his movement’s around town for four weeks without a search warrant.
Despite the unanimous result, the court was not unified in its reasoning. Five Justices signed the majority opinion, authored by Justice Scalia, finding that the Fourth Amendment “at bottom . . . assure[s] preservation of that degree of privacy against government that existed when the Fourth Amendment was adopted” and thus analyzing the case under “common-law trespassory” principles.
Justice Alito wrote a concurring opinion, signed by Justices Ginsburg, Breyer, and Kagan, faulting the majority for “decid[ing] the case based on 18th-century tort law” and arguing instead that the case should be decided under Katz’s “reasonable expectations of privacy” test. Applying Katz, the four concurring Justices would have found that the government violated the Fourth Amendment because “long-term tracking” implicated a reasonable expectation of privacy and thus required a warrant.
Justice Sotomayor, who signed the majority opinion, wrote a separate concurring opinion, but more on that in a second.
I think the Jones court reached the correct result in this case, and I think that the three opinions in this case represent a near-optimal result for those who want the Court to recognize how its present Fourth Amendment jurisprudence does far too little to protect privacy and limit unwarranted government power in light of recent advances in surveillance technology. This might seem counter-intuitive. I predict that many news stories about Jones will pitch it as an epic battle between Scalia’s property-centric and Alito’s privacy-centric approaches to the Fourth Amendment and quote people expressing regret that Justice Alito didn’t instead win the day. I think this would focus on the wrong thing, underplaying how today’s three opinions–all of them–represent a significant advance for Constitutional privacy, for several reasons:…
I am still puzzled by Sotomayor’s joining of Scalia’s opinion (and Roberts/Kennedy who have never been so originalist). Perhaps she took the minimalist approach because she is taking a wait and see approach to technology and the Fourth Amendment (her closing paragraph makes this clear) or she is articulating a version of judicial minimalism which is not the worst thing in the world (sweeping decisions can be both good and bad so narrow is sometimes preferable). The problem is that the Katz test is for all intents and purposes a minimalist position and has been for 45 years. Scalia’s trip down trespass doctrine lane was wholly unnecessary and is probably less minimalist in that it reaches way beyond (backwards) the accepted interpretation of the Fourth Amendment. And while Sotomayor clearly sees this, her joining an originalist majority contains more overreach than minimalism.
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