Three thoughts on U.S. v. Jones

Many thanks to Danielle Citron for offering to host this writeup, an earlier draft of which is available here.

The Supreme Court came down yesterday in the GPS tracking case, U.S. v. Jones, in which prominent privacy scholars and members of Yale Law School’s Information Society Project filed an amicus brief this fall.

Scalia’s majority held that the physical attachment of a GPS tracker to a car was a warrantless search in violation of the Fourth Amendment, and thus the Court did not need to reach the question of whether GPS tracking invaded a reasonable expectation of privacy. Sotomayor joined, but described in her concurrence how if they had reached the Katz question, she would have found that a reasonable expectation of privacy had been invaded. Alito’s concurrence, joined by Ginsburg, Breyer, and Kagan, criticized the majority’s physical trespass focus and to conclude that under Katz a reasonable expectation of privacy had been invaded.

There has already been a lot written about this opinion, in the short time it has been out. This post is not intended to be comprehensive, by any means, or to evaluate the potential impact of the majority’s trespass/search analysis, which will take time to sort out. I wanted just to add three thoughts to the fray.

(1) Sotomayor’s opinion is the one that will have the biggest practical impact, and thus to me is the most important;

(2) The most troubling indication for future cases is Alito’s observation that the Katz test is grounded in social norms that increasingly deprioritize privacy, which may lead Alito and possibly others away from the Fourth Amendment in the future, towards deferring to legislation; and

(3) The majority’s treatment of the beeper case, Knotts, suggests a possible theme to explore: maybe down the line the question can become whether third party behavior looks more like that of a traditional police informant, rather than following the blanket Miller rule that third parties can do what they like with information. More on this below.

First: Sotomayor’s concurrence is the one that will have the greatest practical impact. The majority holding adds a line of defense against slipping trackers into overcoat pockets– a scenario Kennedy and Sotomayor both referenced at oral argument– but it has a narrow practical impact, because police don’t need to physically attach a tracker to your car to use GPS tracking. They can just turn on GPS trackers already in your car (OnStar) or on your person (cell phones).

Sotomayor joins the majority on the trespass issue and refuses to reach the Katz question of whether GPS tracking violates a reasonable expectation of privacy, but then she spends the concurrence explaining how she would treat Katz. In a GPS tracking case where no physical attachment occurred, Sotomayor would “ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” This concurrence signals precisely what Sotomayor’s outcome will be in the next GPS case, about OnStar or its equivalent: GPS tracking (of a certain magnitude) is a violation of the Fourth Amendment.

The real result of Jones is thus not a narrowly held majority about physical trespass. It is, for precedent-citing purposes, but not for its impact on practice or lower courts. Sotomayor uses her concurrence to clearly signal to cops and judges. The next time one of these cases comes up, Sotomayor will be joining Alito on the reasonable expectation of privacy question. Or she may write an even stronger concurrence, since she suggests that Alito hasn’t adequately taken into account the ease of GPS tracking, or its chills on associational and expressive freedoms. This matters– and matters a lot– because in the interim cases, before another GPS case comes to the Supreme Court, judges are going to pay attention to Jones for any hints of a future outcome. And Sotomayor deliberately showed her hand.

Second, the most dangerous part of these opinions is not the majority’s decision about trespass, but Alito’s conclusion that Katz is tethered to evolving social norms, and his tendency to consequently defer to the legislature on these issues. If this is how Alito views Katz, then as society gets more privacy invasive, he will be more likely to defer to Congress than to invoke the Fourth Amendment. It is not clear how many will follow him on this path.

According to Alito at oral argument, “[t]echnology is changing people’s expectations of privacy. Suppose we look forward 10 years, and maybe 10 years from now 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones. Then — what would the expectation of privacy be then?”

Alito returned to this idea in the concurrence: “even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.”

This angle on Katz is disturbing, because it conflates knowledge that one is being unreasonably surveilled with acceptance of that surveillance. This perversely incentivizes a dearth of public conversation about privacy violations, in the interest of preserving Fourth Amendment-based privacy. It also fails to recognize any difference between surveillance by private companies and surveillance by the government, indicating that Alito may be slow to follow Sotomayor in her hope to overturn Miller. Combine this view with Alito’s indicated desire to defer to the legislature on these issues, and it may be that by the time the next GPS case comes up, Alito will change sides.

My third point will take a lot more development, and admittedly is a long shot or a merely theoretical one. But the majority’s treatment of the earlier beeper case, Knotts, at 8, looks strangely like a misplaced trust case. The individual who received the chloroform containers with the beeper already placed in them by the previous owner (the chloroform manufacturer) in Knotts couldn’t say that his property had been searched, because the police didn’t search it: the previous owner made the choice to cooperate with the police. Similarly, in U.S. v. White, 401 U.S. 745 (1971), the Court found that when a defendant trusts an apparent colleague and that trust turns out to have been misplaced, no warrant is required for wiretapping.

Maybe, then, the misplaced trust idea could be used in the future as a principle to both limit Miller and address the OnStar problem. Instead of looking only to whether the tracker was placed by the police or placed prior to purchase, courts could look to whether the third party intended to be a police informant in supplying the person with the technology. If you sell a person a car in which you’ve hidden a tracking device because you intend to aid the police in tracking that person, no warrant would be needed. But if as a car manufacturer you’ve provided the person with the same car you sell everybody, and one feature happens to be that you can turn on tracking, police would need a warrant to ask you to turn the tracking on.

This idea is in very nascent stages, and I realize Miller is likely insurmountable until overturned or at least reevaluated. I also realize that misplaced trust and the trespass question are different issues, and the majority gave every indication of understanding the moment of placement of the GPS literally and physically. Finally, I understand the very large potential loophole that all third parties could just claim that they always intend to be police informants on everybody, before any sale occurs. But it’s a thought that might serve to unify trespass with misplaced trust and third party doctrine, and create a limiting requirement of specific prior intent to inform for all three.

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1 Response

  1. Josh says:

    Prof. Kaminski,

    I’m curious as to why you aren’t more hopeful regarding Alito’s concurrence. I recognize the potential for a degradation of privacy that he points out from Katz, but I guess that potential has really always been there since Katz’s inception. It seems to me, though, that his suggestion at oral argument to which you’ve referred could actually cut both ways.

    Obviously allowing your friends to monitor your location or activities through social networking sites seems very similar to the “false friend” line of cases. Nevertheless, as society becomes more technologically sophisticated, I believe following the societal expectations might increase our level of privacy in a more modern sense. Couldn’t this case and Alito’s concurrence be read to say that the “real world” exchanges of information should be treated differently from online communication/tracking because society does have a completely different set of social conventions and expectations for the latter?

    Furthermore, I think that just pointing out that people know that their communications could be technologically monitored by others is different from the Katz emphasis of social expectation of privacy that Alito’s concurrence hinges on. I happen to know many people, including one federal judge, who are aware that GPS tracking could be done via tracking a mobile phone, but aren’t aware of the default settings making such tracking about as ubiquitous as Justice Alito’s oral-argument comments described.