Limits on the Private Sector after US v Jones

Three great articles by Robert Gellman on location privacy, on First Amendment & Fourth Amendment issues in the US Supreme Court’s GPS Tracking case (US v. Jones), and on the complexities of legislating privacy after US v Jones — in the Communia Blog of the Woodrow Wilson Center‘s Commons Lab.

• Legislating Privacy after US v Jones: Can Congress Limit Government Use of New Surveillance Technologies?
• Nader, Onassis, and Jones: Privacy in Public and Limits on the Private Sector 
• Location Privacy: Is Privacy in Public a Contradiction in Terms?

Robert Gellman, JD is a privacy and information policy consultant in Washington, D.C. He served for 17 years on the staff of a subcommittee in the House of Representatives. He can be reached at bob [at] bobgellman. [dot] com or visit his website at http://www.bobgellman.com/.

Related articles

• Legislating Privacy After US v Jones (geodatapolicy.wordpress.com)
• Supreme Court Relies on Kerr’s Theory of Fourth Amendment and Property (geodatapolicy.wordpress.com)
• Supreme Court GPS Tracking Case: Round-up and Resources (geodatapolicy.wordpress.com)
• Supreme Court Ruled on GPS Tracking Case, Backs Privacy Rights (geodatapolicy.wordpress.com)
• GPS Surveillance: A Crossroads for the Fourth Amendment (geodatapolicy.wordpress.com)
• Supremes to Congress: Bring privacy law into 21st century (news.cnet.com)

Legislating Privacy After US v Jones

Legislating Privacy after U.S. v. Jones: Can Congress Limit Government Use of New Surveillance Technologies?

by Robert Gellman, JD, Communia Blog, Woodrow Wilson International Center for Scholars, January 25, 2012

The Supreme Court’s decision in U.S. v. Jones, a case that addressed the use of global positioning system GPS tracking devices for law enforcement purposes, is hot privacy news. Almost immediately, the decision sparked numerous and sometimes conflicting comments. The issue here is whether the decision will prompt Congress to consider legislation and what that legislation might look like.

The majority opinion by Justice Antonin Scalia used a property-based approach to conclude that attaching a GPS device to a car and using the GPS to monitor the car’s movements on public streets constitutes a search or seizure within the meaning of the Fourth Amendment to the Constitution. The narrow basis for the decision turned on the fact that the government physically occupied private property the car for the purpose of obtaining information.

A concurring opinion by Justice Samuel Alito and joined by three of his colleagues reached the same outcome, but Alito wanted to determine whether the car owner’s reasonable expectations of privacy were violated by the long-term monitoring of his car. Essentially, Alito thought that the majority’s property analysis was not scalable to present day surveillance issues and that an expectation of privacy standard would reach the same result without the baggage of the property-based approach.

Justice Sonia Sotomayor joined the majority opinion, but she also filed a concurring opinion. She observed that physical intrusion is not always necessary for surveillance e.g., by tracking a cell phone and argued that how surveillance is done may affect an expectation of privacy. So in her opinion Sotomayor asked whether people reasonably expect that their movements will be recorded in a manner that allows the government to ascertain their political and religious beliefs, sexual habits, and more. She even questioned the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. That was the holding in United States v. Miller, 425 U. S. 435, 443 1976 , a case increasingly criticized by privacy advocates as inconsistent with life today.

…

For full text of this article, which provides an insightful overview of what crafting and passing updated privacy legislation might entail, visit Legislating Privacy After US v Jones « Communia.

Robert Gellman, JD is a privacy and information policy consultant in Washington, D.C. He served for 17 years on the staff of a subcommittee in the House of Representatives. He can be reached at bob [at] bobgellman. [dot] com or visit his website at http://www.bobgellman.com/. Also check out his article Location Privacy: Is Privacy in Public a Contradiction in Terms?

Related articles

• Supreme Court GPS Tracking Case: Round-up and Resources (geodatapolicy.wordpress.com)
• Supreme Court Relies on Kerr’s Theory of Fourth Amendment and Property (geodatapolicy.wordpress.com)
• Location Privacy: Is Privacy in Public a Contradiction in Terms? (geodatapolicy.wordpress.com)

Supreme Court GPS Tracking Case: Round-up and Resources

Updated February 20, 2012

UNITED STATES v. JONES
615 F. 3d 544, affirmed.

From Cornell University Legal Information Institute [HTML version has links to cited cases]:

• Syllabus [HTML] [PDF]
• Opinion, Scalia [HTML] [PDF]
• Concurrence, Sotomayor [HTML] [PDF]
• Concurrence, Alito [HTML] [PDF] 

From the Supreme Court and American Bar Association websites:

• Supreme Court Opinion No. 10-1259, Argued Nov 8, 2011 and Decided January 23, 2012 [PDF]
• Oral Argument Transcript [PDF]
• Merit and Amicus Briefs, American Bar Association, Accessed January 23, 2012

Legislation

In his written opinion, “Alito said the court and Congress should address how expectations of privacy affect whether warrants are required for remote surveillance using electronic methods that do not require the police to install equipment, such as GPS tracking of mobile telephones. Alito noted, for example, that more than 322 million cellphones have installed equipment that allows wireless carriers to track the phones’ locations (ABC News, Jan 23, 2012).” In his article linked below, Robert Gellman provides a nice overview of the complexities of the legislative process for updating privacy legislation after US v. Jones:

• Legislating Privacy after US v. Jones: Can Congress Limit Government Use of New Surveillance Technologies? Robert Gellman, Communia Blog of the Science and Technology Program, Woodrow Wilson International Center for Scholars, January 25, 2012

For a list of proposed location privacy legislation as of Fall 2011, visit the home page of Kevin Pomfret’s Centre for Spatial Law and Policy.

Law Review Articles and Essays

• A Reasonableness Approach to Searches After the Jones GPS Tracking Case, Peter Swire, 64 Stan. L. Rev. Online 57 (2012)
• Signal Lost: Is a GPS Tracking System the Same as an Eyeball? Eric Andrew Felleman, 45 Michigan Journal of Law Reform 1 (2011)
• Tied Up in Knotts? GPS Technology and the Fourth Amendment, Renee McDonald Hutchins, 55 UCLA Law Review 1 (2007)
• The Case for the Third-Party Doctrine, Orin Kerr, Michigan Law Review Vol 107, 2009; see also counterpoint Kerr Defends the Third-Party Doctrine, Jim Harper, The Technology Liberation Front, May 30, 2008
• The Fourth Amendment and New Technologies: Constitutional Myths and The Case for Caution, Orin Kerr, 102 Mich. L. Rev. 801, 200

Case Summaries  and Commentaries (disclaimer: opinions and analyses are those of the original authors, not all may be accurate)

February 2012

• What Does Jones Mean for the Exclusionary Rule? David Gray, Concurring Opinions, February 10, 2012
• Nader, Onassis, and Jones: Privacy in Public and Limits on the Private Sector Robert Gellman, Communia Blog, Woodrow Wilson Center, February 9, 2012

January 2012

• Kennedy and Szoka on US v Jones by Danielle Citron, Concurring Opinions, January 30, 2012
• The Potentially Profound Implications of US v Jones, Daniel Solove, Concurring Opinions, January 29, 2012
• United States v Jones: A Step-back for Rights, Renee Hutchins, Concurring Opinions, January 29, 2012
• Barry Friedman on US v Jones, Danielle Citron, Concurring Opinions, January 29, 2012
• Reasonable Expectation of Privacy, Gerard Magliocca, Concurring Opinions, January 24, 2012
• United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5. Pricilla Smith, Concurring Opinions, January 24, 2012
• Jones Confounds the Press, Tom Goldstien, SCOTUS Blog, Bloomberg, January 25, 2012
• Legislating Privacy after US v. Jones: Can Congress Limit Government Use of New Surveillance Technologies? Robert Gellman, Communia Blog of the Science and Technology Program, Woodrow Wilson International Center for Scholars, January 25, 2012
• Three Thoughts on US v Jones, Margot Kaminski, Concurring Opinions, January 24, 2012
• Jones is a Near-Optimal Result, Paul Ohm, Concurring Opinions, January 24, 2012
• United States v. Jones: Privacy in Public Space? Piece it all Together and You Get 5, Priscilla Smith, Concurring Opinions, January 24, 2012
• Reasonable Expectation of Privacy, Gerard Magliocca, Concurring Opinions, January 24, 2012
• Why Scalia is Right in Jones: Magic Places and One-Way Ratchets, Derek Bambauer, January 24, 2012
• Here’s Why You Should Care (A Lot) About the Supreme Court’s GPS Ruling, Neal Ungerleader, Fast Company, January 25, 2012
• Searching for Clarification: United States v. Jones and Searches Under the Fourth Amendment, Reasonably Prudent: Tax, Technology and the Law Blog, January 24, 2012
• All Hail Samuel Alito, Privacy Champion Extraordinaire, Jeffery Rosen, The New Republic, January 24, 2012
• U. S. Supreme Court Unanimously Rule that GPS Installation and Tracking of a Vehicle Constitutes a Search, But The Justices Disagree on Rationale – Are Lines Being Drawn on Privacy Rights and New Technology?, Jeff Neuberger, New Media and Technology Law Blog, January 23, 2012
• A Unanimous Privacy Victory in US v. Jones, Jim Harper and Julian Sanchez [Video Podcast on YouTube], January 23, 2012
• “Jones”ing for a Fourth Amendment Upgrade, Julian Sanchez, Cato Institute, January 23, 2012
• US v. Jones: A Big Privacy Win, Jim Harper, Cato Institute, January 23, 2012
• United States v. Jones is a Near-Optimal Result, Professor Paul Ohm, Princeton Center for Information Technology Policy, Freedom to Tinker Blog, January 23, 2012
• The New Doctrine of What Is a Fourth Amendment Search, What Jones Does Not Hold, What’s the Status of The Mosaic Theory After Jones, Why Did Justice Sotomayer  Join Scalia’s Majority Opinion in Jones, and Three Questions Raised by the Trespass Test in US v. Jones, Professor Orin Kerr + comments, The Volokh Conspiracy, January 23, 2012
• Daniel Solove and other contributors, Concurring Opinions, January 2012
• Tight Limit on Police GPS Use, Lyle Denniston, SCOTUS Blog, Bloomberg Law, January 23, 2012
• Supreme Court Decision in Warrantless GPS Tracking Case Offers Little Guidance in Consumer Privacy Context, Christopher Wolf, Hogan and Lovells, January 24, 2012
• Supreme Court: GPS Location Tracking Qualifies as Search, Tony Romm, Politico, January 23, 2012
• What Does The Supreme Court Ruling Against Warrantless GPS Tracking Mean? Carl Franzen, TPM, January  23, 2012
• Supreme Court Rules That GPS Is A Search, But That’s About All, Doug Mataconis, Beyond the Beltway, January 23, 2012
• Overnight Tech: Lawmakers Weigh in on High Court’s GPS Ruling, Brenden Sasso, The Hill, January 23, 2012
• Supreme Court Rules in Highly Watched GPS Case, John Moe, MarketPlace, January 24, 2012
• Alito v. Scalia: Two Conservative Supreme Court Justices Brawl Over Technology and Privacy, Dahlia Lithwick, Slate, January 23, 2012
• U.S. Supreme Court decides government use of GPS for monitoring constitutes search under the 4th Amendment, Alex Howard, Gov Fresh, January 23, 2012
• A Supreme Court Justice’s Radical Proposal Regarding The Privacy of Your Google Searches, Facebook Account & Phone Records, Kashmir Hill, Forbes, January 23, 2012
• Supreme Court Deals Blow To Government Surveillance, Saying Warrant Needed For GPS Tracking, Kashmir Hill, Forbes, January 23, 2012
• Supreme Court Rejects Willy-nilly GPS Tracking, David Kravets, Wired, January 23, 2012
• Supreme Court holds warrantless GPS tracking unconstitutional, Timothy B. Lee, Ars Technica, January 23, 2012
• Jones a Victory for Privacy but Only Beginning of Fixing Fourth Amendment Doctrine, Berin Szoka, TechFreedom, January 23, 2012
• Supreme Court Requires Warrant for GPS Tracking, Center for Technology and Democracy, January 23, 2012
• Justices Say GPS Tracker Violated Privacy Right, Adam Liptak, New York Times, January 23, 2012
• What Does the Supreme Court GPS Ruling Mean for Privacy? Jennifer Valentino-DeVries, Digits, Wall Street Journal, January 23, 2012
• Why the Jones Supreme Court Case Is Worse Than It Sounds, Rebecca Rosen, The Atlantic, January 23, 2012
• Supreme Court Rules Government Violated Privacy Rights in GPS Tracking Case, ACLU, January 23, 2012

• EPIC US V Jones Analysis
• CDT Amicus Brief
• CDT Summary of Supreme Court Case, Does GPS Tracking Require a Warrant?

Older posts

• US v. Jones: Where Privacy, Technology and the Constitution Collide, John Whitehead [Video Podcast on YouTube], Rutherford Institute, October 10, 2011
• US v. Jones, Professor Douglas Godfrey, IIT Kent College of Law [Video on YouTube], OyezToday.com, November 7, 2011

What Does the Supreme Court GPS Ruling Mean for Technology and Privacy?

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.

Related articles

• 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)

St. Louis Judge To Address GPS Tracking

by Kashmir Hill, Forbes, Jan 3, 2012

In 2012, we can look forward to a decision from the Supreme Court in U.S. vs. Jones, about whether law enforcement need to get a warrant to slap a GPS tracking device on a person’s car. A judge in St. Louis is not waiting to hear what The Nine think of the issue, though. U.S. Magistrate Judge David Noce ruled last week that the FBI didn’t need a warrant to put a tracker on the car of a government employee back in 2010. …

For full text of the article, visit St. Louis Judge Not Waiting For Supreme Court’s GPS Tracking Decision – Forbes.

Related articles

• St. Louis Judge Not Waiting For Supreme Court’s GPS Tracking Decision (forbes.com)
• New CRS Report on Governmental Tracking of Cell Phones and Vehicles (geodatapolicy.wordpress.com)
• FBI allowed to add GPS device to cars without warrants (rt.com)
• Judge Doesn’t Care About Supreme Court GPS Case (yro.slashdot.org)
• No Warrant Needed for GPS Monitoring, Judge Rules (wired.com)
• Judge: No Warrant Needed for GPS Tracking on Vehicles [VIDEO] (mashable.com)
• CDT Summary of Supreme Court Case, Does GPS Tracking Require a Warrant? (geodatapolicy.wordpress.com)

Transcript of Supreme Court GPS Tracking Case Made Available

For the transcript of oral arguments for the U.S. Supreme Court Case United States v. Antoine Jones (No. 10-1259), November 8, 2011, click here.