by Matt Picciotti
This post is part of the student blogger project from the summer session of Space Security Law.
Matt Picciotti is a second year law student working towards a Certificate in Remote Sensing, Air, and Space Law. Prior to attending law school Matt graduated from Mississippi State University with a degree in Business Administration. He is a private pilot and plans to pursue a career in the aviation field.
U.S. v. Jones presented the opportunity for the court to review warrantless GPS tracking devices. Scalia for the majority applied the “trespass doctrine” and focused on the physical trespass to Jones’s vehicle which was considered an “effect” within the reach of the fourth amendment. This came as a surprise to some, however, the Katz “reasonable expectation of privacy” test (as discussed in previous post) was to augment the traditional trespass test and not replace it. In applying this test the court put two important limitations on it. First, a simple trespass alone is not enough. The trespass must be done for the purpose of obtaining information.1 Although this opinion was unanimous, it had its critics. Mostly from Justice Alito, who advocated for a different test in his concurrence.
Justice Alito would have applied the Katz “reasonable expectation of privacy test.”2 In his opinion he accuses the majority of using eighteenth century law to solve a twenty-first century problem.3 Instead of focusing on the installation of the tracker, Alito argues that it is the use of it is of a major concern.4 He argues that the four week duration of the tracking violated society’s reasonable expectation of privacy, but he also posited that short-term tracking does not do so. Yet, Alito does not specify at what point the duration line has been crossed. In addition Alito suggest that long term tracking may be reasonable if the crime is serious enough.
Justice Sotomayor concurred with the majority.5 She agreed the Katz test was meant to augment, not to replace the trespass test and concluded that the majority properly relied on the narrowest means of decision.6 However, Sotomayor noted that “in cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority’s opinion’s trespassory test may provide little guidance.”7 She reasoned that long term GPS tracking interferes with expectations of privacy on a deeper level that what the majority recognized and pointed out that long term monitoring exposes details about one’s life that short term monitoring would not.8 Finally, Sotomayor express her concern that the public’s awareness that the law enforcement may be monitoring and recording all activities “chills associational and expressive freedoms.”9
The Jones decision may be seen as a “pro privacy” ruling, yet it does not take into account several factors. In example it fails to discuss methods of monitoring that do not rise to the level of a trespass such as pre-installed GPS receivers on cars or in cellphones. This suggests that it is seemingly OK for law enforcement to monitor a car provided that the GPS tracking devices is installed prior to delivery to the suspect of interest. Under the Katz “reasonable expectation of privacy” test it suggests that police could then monitor people out in public assuming there is not expectation of privacy in public. Furthermore, Justice Alito seems to believe that short term monitoring by GPS may be appropriate, yet does not point out what is considered “to long” of a period of monitoring.
1 U.S. v. Jones, 132 S. Ct. 945, 951 (2012).
2 Id. at 959-60.
3 Id. at 957.
4 Id. at 958.
5 Id. at 954.
9 Id. at 956.