United States v. Jones — The Fourth Amendment and GPS Surveillance

The U.S. Supreme Court has decided United States v. Jones, concluding that when the government installs a GPS surveillance device on a car, it is a Fourth Amendment search.  The majority uses a property-based rationale and the concurring opinion (Alito, Ginsburg, Breyer, and Kagan) uses a privacy-based rationale.   More thoughts and analysis to come later.

I also want to congratulate my colleague Orin Kerr, who is cited in both the majority opinion and in a concurring opinion 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.

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3 Responses

  1. Ronald Homer says:

    The privacy rational from Alito was remarkably vague. My summary of his opinion:

    1. trespass standard isn’t uniform enough. we need a reasonable privacy standard.

    2. Reasonable privacy is highly variable, based on culture and developing technology. We need congressional statutes defining reasonable privacy.

    3. Since we don’t have a good test for whether or not this was a violation of reasonable privacy, I’m going to say “yes, just because”, until i recieve further guidance from congress.

  2. Joe says:

    I didn’t get the sense Prof. Kerr beforehand thought the result would be thus but the citations are notable. His co-blogger, Eugene Volokh, also has been cited.

    I think Justice Sotomayor has an excellent opinion — she flags some serious issues but joins with Scalia, since he puts forth a “floor” that works better than Alito’s more pragmatic approach. As to Alito, well maybe, but the 4A IS pretty vague. What is “reasonable”? Case by case.

  3. Joe says:

    Well, maybe, it’s “should” be thus. See also his “fascinating” thoughts on the mosaic theory, which over at Volokh Conspiracy he notes survives, perhaps because Scalia didn’t think things through. Maybe, he can help.