Tag Archive | United States Supreme Court

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 Jonesin the Communia Blog of the Woodrow Wilson Center‘s Commons Lab.

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/.

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?

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]:

From the Supreme Court and American Bar Association websites:

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:

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

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

February 2012

January 2012

Older posts

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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.

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.

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.

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