United States v. Jones: A Fleeting Victory for Privacy

-- By MattKokot - 13 Mar 2012

Introduction

In United States v. Jones, the Supreme Court held that the Fourth Amendment requires the government to obtain a warrant before it can place a global positioning device on a suspect's car. While some are hailing the decision in Jones as a "landmark ruling in applying the Fourth Amendment's protections to advances in surveillance technology," this Essay will argue that the decision in Jones represents no more than a fleeting victory for privacy.

How about, "I think" instead?

Although the decision certainly makes it harder for police to use GPS technology to track criminal suspects, as evidenced by the FBI's recent turning off of 3000 GPS trackers in the wake of Jones, the decision skirted many important privacy issues regarding new technologies. Moreover, because the Fourth Amendment still requires state action before its protections attach, the power of Jones to protect individuals' privacy will quickly be undermined by advances in technology which make state action unnecessary.

I. The Supreme Court's Decision in Jones is Very Narrow

A. The Facts of Jones and the D.C. Circuit Opinion

In Jones, government agents attached a GPS tracking device on the undercarriage of a suspected narcotics trafficker's Jeep without a valid warrant. The government then tracked the vehicle's movements over 28 days. The GPS tracking device was able to pinpoint the location of the Jeep to within 50 to 100 feet, and then relayed the information to a government computer. In all, the GPS tracking device relayed more than 2000 pages of data over the four week period. In other words, the GPS tracking device allowed the government to track the totality of the defendant's movements for the four week period. The D.C. Circuit Court of Appeals found this use of the GPS device unreasonable because the totality of one's movements over such a period of time are neither "actually" nor "constructively" exposed to the public in a way which eliminates a defendant's reasonable expectations of privacy.

B. The Supreme Court Opinion and Outstanding Issues

The Supreme Court's Jones opinion upheld the result reached by the D.C. Circuit, but did so on very different rationale. While the D.C. Circuit held that the extent of the search - continuous surveillance - made the search unreasonable, the Supreme Court held simply that the placement of the GPS tracking device on Jones's car was itself a search. Despite leading to the same result in the Jones case, the Supreme Court's rationale is far narrower. By failing to determine whether continuous surveillance is itself "unreasonable" under the Fourth Amendment,the Supreme Court left outstanding many issues which would be plainly unreasonable under the D.C. Circuit's rationale. For example, as Justice Sotomayor notes in her concurring opinion in Jones, "[i]n cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance."

Overall, therefore, it is hard to consider the Supreme Court's opinion in Jones a major victory for privacy. By hinging its decision on the physical placement of the GPS device on Jones's car, the Supreme Court left open the more troubling government surveillance issues in the case - namely, whether continuous surveillance by a government actor for an extended period of time constitutes an "unreasonable" search under the Fourth Amendment.

This means, "the Supreme Court thinks that the Fourth Amendment is about places entered by the State for purposes of search and seizure." As I pointed out, it's hard responsibly to disagree with the Supreme Court on that subject. But for the moment all the Court has done is what we all agree it's done: the Court has reserved any consideration of "inherent unreasonableness" about intense governmental data-mining for purposes of individual prediction and surveillance for another time. Justice Sotomayor has expressed the view that this will ultimately mean regulating on new terms some forms of State interactions with third-party intermediaries. We are barely at the beginning of discovering what that point if view, if shared, would mean.

II: New Technologies Will Rapidly Make Jones Protection Obsolete

In addition to failing to resolve the most pressing government surveillance issues presented, the Supreme Court's Jones opinion will also be undermined quickly by new technologies. Because of the state action doctrine, the Fourth Amendment only protects individuals against searches by government actors. Therefore, Jones only requires that someone obtain a warrant before placing a GPS device on a car if that someone placing the warrant is a government agent. However, new technologies make it easier and easier for the government to simply rely on others to do the equivalent of placing the GPS device on the car, creating an easy workaround of Jones. Justice Sotomayor provides a telling example in her concurring opinion when she states that "[w]ith increasing regularity, the government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones." Why would the government go about getting a warrant to place a GPS on an individual's car to track his movements for four weeks when it can simply contact his cellphone provider and obtain enough data to reconstruct six months of an individual's life? In this scenario, the only restraint on the government's ability to continuously track someone's movements is the cellphone company's willingness to turn over data. If evidence from Sprint, which provided law enforcement agencies with customer location data more than 8 million times between September 2008 and October 2009, means anything at all though, this restraint will hardly be meaningful.

It would be really good to know how many individuals Sprint was following for law enforcement, and how often they were checking in.

Conclusion

The Supreme Court's decision in Jones certainly provided some protection to American citizens by requiring government agents to obtain a warrant before placing a GPS tracking device on an individual's car. This essay, however, argues that this protection is no more than fleeting because the Jones decision failed to resolve the most pressing government surveillance issues presented in the case, and because emerging technologies will entirely undermine the Fourth Amendment's ability to protect individuals from unreasonable searches and seizures. Perhaps the best solution to the problem of individual privacy during an age of rapidly changing technology is for individual citizens to battle technology with technology, and create their own technologies which make it harder for private actors to wage a man in the middle attack on individual privacy.

Certainly that's one part of the response. This is a problem being created by technologies we can understand and use for purposes of strengthening civil liberty as well as destroying it. It's perfectly reasonable to make our plans on the assumption that law will change much more slowly than society, and that rights will be recognized long after their existence has become undeniable. We should also make our dispositions assuming that technology can be developed and deployed long before its social results are clear to the people adopting, let alone using, it. We put free software inside this whole developing exoskeletal nervous system of ours, and its presence affects the way the superorganism we are building called "Humanity" behaves. We need to activate that software in new ways, propel it into new classes of hardware and network processes, so as to ensure that there are always ways of doing whatever computers do that are under the control of the human beings who "own" or "possess" or "are merged with" the computers. When peoples' brains develop in direct relation to the Net, which is going to be from now on, the way the Net's computers let them think is how they think. Free code is the basis of free minds now. Live with it.

But law will have to catch up. It always does. Eventually the issues that are central to human freedom are going to be raised, and decisions are going to be made about them. We aren't talking now about the cases, or even their predecessors. As you show very clearly, we are still in the period in which the judges try not to recognize the new by dealing with it under analogical terms that are old. This is one of the beautiful forms of intricate bullshit that are used in the creed-factory we call "constitutional law." It potentiates rethinking downward for the better part of a generation, as it did between Debs and Adkins. (Other techniques are employed for the "release of energy" phases.) We are not yet discussing how the cases in which the judges will at last allow themselves to face what is happening should be decided.

We can talk about what a legislature less venal and more public-regarding might do, but this also charms us rather than helps us because such a legislature seems impossible to obtain. The relevant regulatory agencies, particularly the FCC, are more thoroughly captured than any hypothetical "bad agency" in the theoretical literature of administrative law. We will not even be charmed if we ask ourselves what they might do to assist freedom. And if the Director of National Intelligence has not otherwise transformed the "intelligence community," this DNI has proved a formidable policy-maker when it comes to protecting and furthering the interests of the surveillance industrial state.

So, it's the courts. And however long it takes, the issue is always the next one presented, and the right outcome is the one that gets closer to recognition of the scope of new realities. Lawyers out there know what issues are important to clients, and there are counsel who also know what needs to be done over the long term. Maybe that's part of the practice you want to have.