By Jennifer Valentino-DeVries, Digits, Wall Street Journal, January 23, 2012
The Supreme Court ruled Monday that police violated the Fourth Amendment when they attached and used a GPS device to track a suspect’s vehicle without a warrant. … [But the Court's decision] 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. …
For full text of the article, visit What Does the Supreme Court GPS Ruling Mean for Privacy? – Digits – WSJ.
- Supreme Court Ruled on GPS Tracking Case, Backs Privacy Rights (geodatapolicy.wordpress.com)
- Supreme Court Relies on Kerr’s Theory of Fourth Amendment and Property (geodatapolicy.wordpress.com)
As noted by Professor Daniel Solove, Orin Kerr is cited by the Supreme Court in both the majority opinion and in a concurring opinion of US v Jones for his article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004). The majority opinion relies heavily on Orin’s theory of the Fourth Amendment and property that he sets forth in the first part of his article.
by Orin S. Kerr, George Washington University – Law School, 102 Mich. L. Rev. 801 (2004)
Abstract: This article argues that courts should approach the Fourth Amendment with caution when technology is in flux. When a technology is new or developing rapidly, courts should adopt modest formulations of Fourth Amendment protections that recognize the effectiveness and institutional advantages of statutory privacy protections.
The cautious approach is justified on three grounds. First, caution is consistent with existing judicial practice. The reasonable expectation of privacy test generally has been used by the courts as a term of art that remains closely tied to property law concepts. When a technology implicates privacy but not property, current judicial practice tends to avoid broad interpretations of the Fourth Amendment.
By Jess Bravin, Wall Street Journal, What They Know, January 23, 2012
WASHINGTON—The Supreme Court ruled Monday [in United States v. Jones] that police must obtain a warrant before attaching a GPS tracker to a suspect’s vehicle, voting unanimously in one of the first major cases to test constitutional privacy rights in the digital age. … The court split 5-4 over the reasoning behind Monday’s decision, with Justice Antonin Scalia writing for the majority that as conceived in the 18th century, the Fourth Amendment’s protection of “persons, houses, papers, and effects, against unreasonable searches and seizures” would extend to private property such as an automobile. …
For full text of the article, visit Supreme Court Backs Privacy Rights in GPS Case – WSJ.com.
For full text of the Court’s opinion in United States v. Jones, click here.
- Supreme Court rules 9-0 that warrant absolutely needed for police GPS tracking (wired.com)
- GPS Surveillance: A Crossroads for the Fourth Amendment (geodatapolicy.wordpress.com)
- CDT Summary of Supreme Court Case, Does GPS Tracking Require a Warrant? (geodatapolicy.wordpress.com)
- Supreme Court Considers GPS Tracking Case Today (geodatapolicy.wordpress.com)
- New CRS Report on Governmental Tracking of Cell Phones and Vehicles (geodatapolicy.wordpress.com)
By Jennifer Valentino-DeVries, Digits, Wall Street Journal, September 22, 2011
The Fourth Amendment of the U.S. Constitution protects against “unreasonable searches and seizures” – but what does that mean when it comes to techniques that use technology rather than a physical search that is easy to see? In many ways, it remains unclear. But there a few key issues that courts have been considering lately when it comes to this question. First up: whether the activity being observed by the technology is outside or inside a person’s house. …
For full text of the article, visit: How Technology Is Testing the Fourth Amendment – Digits – WSJ.
- How Technology Is Testing the Fourth Amendment (blogs.wsj.com)
- Second Circuit Divides 6 – 6 on Rehearing Standing Case to Challenge FISA Amendments Act (volokh.com)
- No Right to Anonymity (nytimes.com)
By JENNIFER VALENTINO-DEVRIES, Wall Street Journal, September 22, 2011
For more than a year, federal authorities pursued a man they called simply “the Hacker.” Only after using a little known cellphone-tracking device—a stingray—were they able to zero in on a California home and make the arrest. Stingrays are designed to locate a mobile phone even when it’s not being used to make a call. The Federal Bureau of Investigation considers the devices to be so critical that it has a policy of deleting the data gathered in their use, mainly to keep suspects in the dark about their capabilities, an FBI official told The Wall Street Journal in response to inquiries.
- ‘Stingray’ Phone Tracker Fuels Constitutional Clash (online.wsj.com)
- Tech Today: Phone Tracker Tests Fourth Amendment (blogs.wsj.com)
- Keeping ‘Stingrays’ Secret Makes Case Tougher for Prosecutors (blogs.wsj.com)
- How Technology Is Testing the Fourth Amendment (blogs.wsj.com)
- The StingRay Is The Virtually Unknown Device the Government Uses to Track You Through Your Phone [Privacy] (gizmodo.com)
Thanks to Kevin Pomfret for passing this one along:
By Franczek Radelet P.C., JDSUPRA, July 25, 2011
Earlier this week, the folks at the Texas Employment Law Update highlighted a case before the U.S. Supreme Court in which the high court will consider whether law enforcement’s placement of a GPS devise on a suspect’s vehicle without a warrant constitutes an unlawful search in violation of the Fourth Amendment. This case led the authors to wonder aloud whether an employer might surrepticiously use GPS to track an employee who is suspected of abusing leave under the Family and Medical Leave Act (FMLA). …
For full text of the article, via Will Employers Soon Use GPS to Catch FMLA Abuse? | Franczek Radelet P.C. – JDSupra.
Electronic Privacy Information Center, June 27, 2011
The Supreme Court will decide if warrantless locational tracking violates the Fourth Amendment. The Court granted review of a District of Columbia Circuit Court of Appeals opinion on two legal questions. The first is whether police need a warrant to monitor the movements of a car with a tracking device. The second is whether policy can legally install such a device without their target’s consent, and without a valid warrant. …
For full text of the article, including links to relevant cases, visit EPIC – High Court To Decide Major GPS Tracking Case.
- Supreme Court Agrees to Hear Key Warrantless GPS Tracking Case (eff.org)
- U.S. Supreme Court to Review GPS Surveillance Case (legaltimes.typepad.com)
- Supreme Court will set rules for warrantless GPS tracking (news.cnet.com)
- Wyden, Chaffetz Introduce the Geolocation Privacy and Surveillance (GPS) Act (geodatapolicy.wordpress.com)
- Lawmakers Propose Warrant Requirement for GPS Data (wired.com)
- Feds to Supreme Court: Allow Warrantless GPS Monitoring (wired.com)