Last week, the Supreme Court handed down a decision in United States v. Jones. The Court held unanimously that because D.C. police entered a suspect’s car without a valid warrant or reasonable suspicion, they violated the suspect’s Fourth Amendment rights. But in the course of the decision, the Court raised — and ultimately failed to answer — a pivotal question about the future of privacy in America: Does the Fourth Amendment provide protection against warrantless electronic data collection and surveillance?
A great deal rests on the answer to this question. In order to fully enjoy the conveniences of the modern world, people today have voluntarily opted into GPS tracking on their mobile devices and in their vehicles. They’ve opted for E-Z Pass electronic tolling; for debit cards instead of cash; and for cloud web services instead of local storage. Most of us leave digital footprints, and we accept that it’s possible for someone to learn a lot about us from our footprints. But we’re also loathe to think that this information could be accessed by the government without probable cause.
The Supreme Court’s decision in U.S. v. Jones did not establish protections for electronically accessed information. The justices did, however, address today’s driving Fourth Amendment concerns, and they speculated on how recent jurisprudence will shape tomorrow’s digital age protections.
The Fourth Amendment
The Fourth Amendment reads:
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
The amendment is rooted in 18th century English common law. Several U.S. Supreme Court decisions (including U.S. v. Jones) cite the 1765 English case Entick v. Carrington as an influential antecedent to the 1787 amendment. The Court in Entick sided with a writer whose private papers had been seized by the King’s messengers. In the decision, presiding Justice Lord Camden famously wrote, “[t]he great end, for which men entered into society, was to secure their property.” 95 Eng. Rep. 807 K.B. 1765.
But over the next two centuries, Fourth Amendment protections in America expanded to cover more than “property” in the 18th century Entick sense of the word.
In the landmark Katz v. United States case of 1967, the Supreme Court held that the Fourth Amendment protected citizens’ “reasonable expectations of privacy.” In that case, FBI agents had attached a recording device to a public telephone booth in order to eavesdrop on Charles Katz, who used the phone booth to transmit illegal gambling wagers. The Court ruled that even though Katz was in public, and even though his personal property hadn’t been trespassed upon, the agents had violated Katz’ Fourth Amendment protections.
In the majority opinion, Justice Stewart wrote that the Fourth Amendment “protects people, not places.” By entering a phone booth alone and closing the door behind him, Katz had seemingly attempted to ensure that his phone call wasn’t heard by the public. Stewart wrote that the FBI’s surveillance had “violated the privacy upon which [Katz] justifiably relied while using the telephone booth and thus constituted a search and seizure within the meaning of the Fourth Amendment.” In a concurrence, Justice Harlan wrote:
The point is not that the booth is “accessible to the public” at other times, but that it is a temporarily private place whose momentary occupants’ expectations of freedom from intrusion are recognized as reasonable.
The Supreme Court went on to apply Justice Harlan’s “reasonable expectation [of privacy]” standard in several Fourth Amendment cases after the 1967 Katz decision. E.g. Bond v. United States (2000); California v. Ciraolo (1986); Smith v. Maryland (1979).
Background of United States v. Jones
Antoine Jones was a D.C. nightclub owner who became the target of a narcotics investigation in 2004. Police obtained a warrant permitting them to attach a GPS tracker to a Jeep owned by Antoine Jones’ wife. The warrant stipulated that the tracker must be installed within ten days and in the District of Columbia. But police didn’t install it until the eleventh day, and they did it while in the state of Maryland.
For the next four weeks, investigators used the GPS device to track Jones’ movements, amassing over 2,000 pages of locational data. The data connected Jones to the location of a stash house which was found to contain $850,000 in cash, 97 kilograms of cocaine, and one kilogram of cocaine base. Police then arrested Jones on narcotics charges.
Before trial, Jones’ lawyers filed a motion to suppress the data obtained by GPS tracker, noting that investigators’ warrant was not valid at the time of the GPS installation. The D.C. District Court granted the motion, excluding data obtained from the tracker while the Jeep was parked in Jones’ garage, while ruling that the rest of the tracking data was admissible at trial since Jones didn’t have a reasonable expectation of privacy while he was driving out in the open on public streets Jones was subsequently convicted of conspiracy to distribute and sentenced to life in prison.
United States v. Jones Decision
All nine justices agreed that the police had violated Antoine Jones’ Fourth Amendment protections. But the justices disagreed about why the GPS tracking was a Fourth Amendment violation.
In the majority opinion, Scalia presented the case in the framework of Entick v. Carrington—a simple case of government trespass on private property for the purpose of gathering information. The police had violated the Fourth Amendment when they trespassed into Jones’ Jeep in an attempt to collect evidence on him. Therefore, Scalia argued, Jones’ expectation of privacy while driving on public streets was irrelevant. Scalia wrote:
It may be that [tracking someone] through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question.
Scalia was joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor.
Justice Alito agreed with the outcome, but disagreed with the majority’s rationale. In his concurring opnion, he argued that Jones could not be decided like Entick — that is, it couldn’t be framed as a physical search upon private property, since the trespassory act of installing a GPS did not in itself constitute a search within the meaning of the Fourth Amendment.
For Alito, the Jones case hinged on precisely what Scalia dismissed as irrelevant: whether Jones’ reasonable expectations of privacy were violated by police actions. Alito answered yes, in this instance, they were — but only because of the significant length of time (four weeks) during which Jones was electronically tracked. He wrote:
[R]elatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable. But the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.
Alito was joined by Justices Ginsburg, Breyer, and Kagan.
Justice Sotomayor, writing a solo concurrence, agreed with the majority that Jones could be decided on the matter of police trespass. But she, like Alito, also believed that the GPS surveillance of Antoine Jones violated Jones’ reasonable expectations of privacy.
Sotomayor explained that GPS tracking allows the government to easily and inexpensively create a “precise, comprehensive record” of a person’s movements, which can then be stored and “efficiently mine[d]” for information for years to come. She explained:
The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “alter the relationship between citizen and government in a way that is inimical to democratic society.” United States v. Cuevas-Perez, 640 F. 3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring).
Sotomayor was thus the lone justice who suggested that GPS tracking even in the short term may violate a person’s reasonable expectations of privacy because of the exhaustive nature of the technology itself.
But Sotomayor went further: She suggested that warrantless electronic surveillance of a person may violate the Fourth Amendment even if that person had voluntarily agreed to be tracked by a third party — say, his car security company or cell phone provider. Sotomayor argued that in the digital age, people share private information with third party companies but retain a reasonable expectation of privacy in that information. She wrote:
I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.
Sotomayor’s pro-privacy musings are hopefully an indication of the Court’s jurisprudence to come. But because the majority did not address these issues, the holding in Jones does almost nothing to fortify Fourth Amendment protections for the digital age concerns expressed by Sotomayor and Alito.
The Future of Fourth Amendment Protections
Post-Jones, the question remains: Does the Fourth Amendment provide protection against warrantless electronic data collection and surveillance? In 2010, the Sixth Circuit ruled in United States v. Warshak that government agents violated Steven Warshak’s Fourth Amendment rights when they compelled his ISP to turn over private emails without first obtaining a warrant. The Supreme Court, however, has yet to hear a case presenting that issue.
Until the Supreme Court expands Fourth Amendment protections to electronically transmitted and stored information — or until Congress sees fit to update the Electronic Communications Privacy Act — our information remains subject to discretionary government seizure.
Pundits have complained that the digital age has wrought the death of privacy — but perhaps, to paraphrase Justice Sotomayor, what we’re experiencing isn’t the death of privacy, but only the death of secrecy. As long as the Court acknowledges that secrecy is not a prerequisite for privacy, we may happily retain our constitutional right to privacy in the information-sharing years to come.