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Technology and the Fourth Amendment

by Todd Bowen

This post is part of the student blogger project from the summer session of Space Security Law.

Todd Bowen is a 3L from Southaven, MS. He is pursuing a certificate from the National Center for Remote Sensing, Air and Space Law.

On January 23, 2012, the United States Supreme Court Ruled on the case of United States v. Antoine Jones. In 2004, the Metropolitan Police Department, working with the Federal Bureau of Investigation (FBI), received a warrant allowing for the installation of a Global-Positioning-System (GPS) tracking device on a Jeep Grand Cherokee. This vehicle belonged to Antoine Jones. Jones was suspected of trafficking narcotics. While the warrant authorized the installation of the device within 10 days in the District of Columbia, the device was actually installed on the 11th day in Maryland. The device was used over a 4-week period and provided the Government with more than 2,000 pages of information. The Court ruled on the issue of whether or not the attachment and subsequent use of a GPS tracking device constituted a search or seizure under the Fourth Amendment. However, the concurrent opinions make it clear the test used in this case will prove to be problematic in the future.

Justice Alito wrote a concurring opinion for this case which was joined by Justice Ginsburg, Justice Breyer and Justice Kagan. Justice Alito points out the problem of deciding the case based on the original meaning of the Fourth Amendment based on the meaning from the time of its adoption. Alito clearly shows how this can cause problems. “If the police attach a GPS device to a car and use the device to follow the car for even a brief time . . . the Fourth Amendment applies. But if the police follow the car for a much longer period using . . . aerial assistance, this tracking is not subject to any Fourth Amendment constraints.” This thought is further expanded on in Justice Sotomayor’s concurrent opinion.

Thanks to technological advances, previously accepted definitions of trespass no longer cover many forms of surveillance. Justice Sotomayor points out that in these instances, the trespass test used by the majority opinion provides little guidance. Technological advances will make the application of current tests for Fourth Amendment challenges nearly impossible. The use of aerial surveillance techniques such as drones and satellites are hard to fit into the classification of trespass to chattels. Additionally, as with GPS monitoring, as the cost of using these newly developed techniques goes down, they are more likely to be used for cases where such tracking would be unheard of.

Justice Scalia, writing the opinion for the court, attempts to answer these issues brought up by the concurring opinions. In reference to the use of electronic signals, Justice Scalia claims these would still be subject to a Katz analysis. The case of Katz v. United States says, “the Fourth Amendment protects people, not places,” and used a “reasonable expectation of privacy” test to determine violations. Perhaps more troubling, Justice Scalia says, “our cases suggest that such visual observation [using a large team of agents, multiple vehicles, and perhaps aerial assistance] is constitutionally permissible.”

This case leaves no doubt that, as the cost of aerial surveillance drops, more and more cases will be aided by the use of footage from drones, satellites, etc. Based on the ruling of U.S. v. Jones, the question remains whether or not this would be a violation of the Fourth Amendment. As Justice Alito suggests, perhaps the best course of action would be the enactment of legislation to address privacy concerns. However, technology moves fast, and as Justice Sotomayor writes, “The net result is that GPS monitoring . . . may ‘alter the relationship between citizen and government in a way that is inimical to democratic society.’”