Tag Archive | Antonin Scalia

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?

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Supreme Court Ruled on GPS Tracking Case, Backs Privacy Rights

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.

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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