Cameron Worrell is a second year student at the University of Mississippi School of Law pursuing a certificate in Remote Sensing, Air, and Space Law.
One of the major future issues for space debris liability involves debris neutralization—either by removal or disintegration. As Michael Listner elaborates, the law of space is woefully inadequate to cover the removal of space debris because there is no equivalent to maritime salvage laws. Not only are non-functioning satellites still properties of the original owner, but so are any pieces of debris, as both are classified as “space objects.” If any international, governmental, or non-governmental organization wants to remove space debris, they have to either get approval for each piece of debris (which would require identifying each of thousands of pieces) or get blanket approval—which is unlikely. The current international situation is a catch-22. The law makes space debris removal impracticable, so states have not developed the tech for it, so they have no incentive to change the law.
Furthermore, any institution willing to tackle the problem of space debris would face its own liability issues. If they ever mistakenly removed an active satellite, moved a piece of debris into the path of an active satellite, or removed an inactive satellite without permission from the owner (over intellectual property concerns, for example), they would be liable for those damages. This makes space debris removal a high-risk, low-reward prospect that becomes a tragedy of the commons. With little incentive for an individual party to remove space debris belonged to other parties, all space parties may stubbornly stick to the current state of affairs until space debris becomes too serious a problem to ignore. By then, however, certain areas of space could potentially be rendered unusable by debris bombardment. The only viable solution is an accord granting an international organization exemption from liability when removing space debris, but getting sovereignty-obsessed states to all agree on such a pact is a daunting task.
As Listner concludes, he mentions an understated problem: what is “space debris”? The term is applied to both natural and unnatural satellites, as well as space objects like asteroids and comets. Additionally, space debris technically includes active satellites as well as inactive satellites. Any international agreement to allow an organization to remove space debris would, as it stands, encompass active satellites. There is currently no international consensus on the definition of space debris, a problem which needs to be addressed before further steps can be taken.
Jason Olinger is a second year law and graduate student working towards a Certificate in Remote Sensing, Air, and Space Law and a Masters in Global Business. Prior to attending law school Jason graduated from the University of Alabama with a degrees in Political Science and Economics. He is a former NCAA Baseball Academic All-Conference athlete and currently works in the aviation industry.
To better understand how to limit the civil and criminal liability of companies falling under ITAR’s regulatory umbrella, we delve into the black letter law. Generally items are “included in the Munitions List when they are designed principally for military, as opposed to commercial, applications.”1 In these circumstances a license is required for any defense related items listed.2 The penalties for not obtaining this licensing in the proper situations can be grave. The consequences for violating ITAR can be imprisonment, fines up to $1 million per violation, or both.3
Boeing Company was made a recent example. Boeing paid more the $15 million in fines for the unlicensed foreign sales of commercial aircraft including a gyroscopic microchip listed on the US Munitions List (ML) and falling under the regulatory power of ITAR.4 This was the fourth in a series of violations committed by Boeing in trying to sell their aircraft.5 In selling their product Boeing effectively exported sensitive technological information to foreign nationals.
It is important to understand when a company has exported to a foreign national under the ITAR definition in order to avoid costly situations such as Boeing experienced. Exportation is defined by government as disclosing or transferring any information or items to a foreign person in the United States or abroad.6 Further, information can be anything required for design, development, production, manufacture, assembly, operation, repair, testing, maintenance, or modification of [items on the Munitions list alluding to the aforementioned].7 ITAR continues to broaden in its authority with every stroke. Companies are additionally liable, not only for their sale to foreign nationals, but for the potential sale of others to foreign nationals within their chain of commerce. Simply put, if Boeing were to sell an aircraft to Bill Gates and Bill Gates in turn sold it to Liang Wengen, Boeing could very well be in violation of the ITAR regulations. The risk of violating ITAR in a complicated global structure under which US companies are participatory, places extreme burden on those that do international business, be it hiring employees, transferring items intra-company, or engaging in global commerce.
There will have to be a relaxation of the chokehold ITAR has over American Industry. Relaxing policies could allow American Industry to better compete in the global technology market, and as a result enhance domestic research discovery through additional revenue and investment. Whether such a strategy would reinvigorate an eroding technological lead, once undeniably held by the United States, is extremely debatable. However, understanding that a relaxation on business regulation administered under the ITAR umbrella will result in less financial burden and greater incentives to do business with United States industry currently hindered by ITAR, is a gleaming fact. Further, it is extremely likely that industry will self-regulate out of selfish interests that result in at least the same level of national security. If the United States is a worthy customer as believed, businesses will not want to take actions, such as exporting technology, that would hurt its customer relationship to such an extent as to financially shoot itself in the foot.
___________________________________________ 1 Christopher F. Corr, “The Wall Still Stands! Complying with Export Controls on Technology Transfers in the Post-Cold War, Post-9/11 Era,” 25 HOUS. J. INT’L L. 441, 464 (2003) 2 C.F.R. §§ 125.2, 125.3. 3 11 CFR § 127.4 4 “Boeing Company Arms Export Control Act Violation(QRS-11 Gyrochip),” POGO.org. Federal Contractor Misconduct Database. http://www.contractormisconduct.org/index.cfm/1,73,222,html?CaseID=913. Retrieved 18 July 2012. 5 Id. 6 22 C.F.R. § 120.17 7 22 C.F.R. § 120.10.
Aaron Herrington is a rising 2L at the University of Mississippi. He is currently pursuing a Certificate in Remote Sensing, Air, and Space Law.
In my previous posts I discussed remote sensing in the context of a commercial setting and when employed by law enforcement, today I discuss the constitutionality of remote sensing in environmental inspections. Congress has included in many pieces of environmental legislation “right of entry” clauses within statutes, which allow governmental investigators access to facilities which would otherwise be off limits. Remote sensing using satellite surveillance is a permissible manner of investigation under the “right of entry” provisions in environmental legislation.
Under this “right of entry” investigators have the power to conduct searches, take samples, and inspect equipment and/or records without first getting a search warrant.1 The problem then becomes, despite this “right of entry” which allows a broad array of investigatory tools, aerial photography, and specifically the legality of the use of satellite imagery under the Fourth Amendment.
In Dow the Court state that an Agency under its investigatory authority, need not identify every possible means that may be employed in the course of exercising the investigatory as prescribed by the authorizing statute. That is, an agency is allowed to employ all means normally associated with them or any that are deemed useful in executing their authority.
The Court in Dow stated that the Environmental Protection Agency (EPA), as a regulatory and enforcement agency, needs no explicit statutory provision to employ methods of observations commonly available to the public at large. Now that satellite imagery is available to the public at large, it is understood that the EPA can use remote sensing satellite technology as an investigatory tool.
One example of the “right of entry” appears in the Clean Air Act.2 This right of entry states that “the authorized representative, that is an investigator, upon presentation of his credentials has the right of entry to, or through any premises of such person or in which any records are to be maintained.”3 Legislative history suggests that this implies permission for entry of building, facilities, and any monitoring equipment present.
Remote sensing satellites are specifically designed to be able to collect data on the earth’s environment.4 This allows satellites to record and analyze electromagnetic energy, including: visible light, infrared radiation, microwave radiation, and all other forms of wave created energy.5 Analyzing this information the EPA is able to detect things such as air pollution by detecting either sensing emission or by detecting deterioration of nearby vegetation, as well as the detection of irrigation violations.
Given the nature in which they employ satellite imagery and because it is no longer reasonable to believe that satellite surveillance does not exist, and because the data collected is generally available to the public, private companies cannot rely on the Fourth Amendment for protection from unwarranted searches under environmental regulations. Therefore, the use of satellite surveillance as a tool of environmental law does not violate the Fourth Amendment.
_________________________________________________ 1 33 U.S.C. § 1318(a)(B) (1988). 2 Clean Air Act § 114, 42 U.S.C. § 7414 (1988). 3 Id. 4 Howard A. Latin, “Remote Sensing Evidence and Environmental Law,” 64 Cal. L. Rev. 1300, 1317 (1976). 5 Jon Erickson, Exploring Earth From Space 53 (1981).
Blake Hempill is a native Mississippian and rising 2L. He intends to enter the field of Entertainment Law.
While last week I took a look at remote sensing in general use, this week I will take a closer look at the problems connected with the federal government’s use of it in connection with the Posse Comitatus Act. The Posse Comitatus Act is a law developed out of the aftermath of Southern Reconstruction after the American Civil War. Its passage stems from a compromise between Republicans and Southern Democrats to concede the 1876 Presidential election to the Republican candidate, Rutherford B. Hayes, after Democratic candidate, Samuel Tilden, lost the fight for 20 disputed electoral votes giving Hayes a one electoral vote victory. To end the controversy surrounding the election, the Republican leadership promised to remove the remaining federal troops from the South in exchange for the Democrats acknowledgement of Hayes as the victor. This led to the passage of the Posse Comitatus Act to limit the use of the army in the enforcement of state and local laws, and in local law enforcement from seeking their assistance or resources.
It’s this second point that is at most contention when it comes to the area of remote sensing. With the increasing prevalence of drugs in society came a bigger push by the governments, both state and federal, of the United States to try to combat them. This fight obviously leads to the problem of resources, and how local and state governments could keep up with what is needed to actually be able to carry out searches and make arrests. As the last blog post showed, the way these searches are best carried out is through aerial surveillance, incorporating technology that smaller governments simply can’t afford. It is here that the federal government has made the argument of the drug trade being an issue of national security, allowing army resources to be involved in the fight.
As the boundaries of the law were still very much up for debate, Congress began making concessions to allow for an increased presence of military activity in the specific area of drug enforcement. Its use of the existing law to work around, however, has made the efforts to advance the fight even more convoluted, causing the question of where the line should be clearly drawn to continue to be a major issue and even more confusing than before. It is this kind of morphing of the law that has led to the military testing the boundaries of what is and is not within its abilities even further.
This new boundary test is most evident with the use of drone tests over civilian populations (Steve Clemons, Air Force Drones Trail Civilian Auto Traffic in New Mexico, The Atlantic). While the military is merely doing testing with the drones, their use of them over civilian traffic within United States borders could very well constitute a violation of both the spirit of the Fourth Amendment of the Constitution and the Posse Comitatus Act. There’s no clear police action in these cases, but the targeting of civilian vehicles to test a drones tracking capabilities seems to fall into the category of an invasion of privacy, and can lead to a slippery slope of their use on a wider scale for actual police action.
Andrew Taylor is currently a law student at the University of Mississippi. He is pursuing a certificate in Remote Sensing, Air, and Space Law.
On February 12, 2008 the Foreign Minister of the Russian Federation on behalf of the Russian Federation and the People’s Republic of China submitted a draft version of the “Treaty on Prevention of the Placement of Weapons in Outer Space, or the Threat or Use of Force Against Outer Space Objects” (PPWT).1 The main goal of the PPWT is to prohibit placing weapons in space. In response to the draft PPWT the United States issued an analysis of the draft in CD/1847. This blog will look at some of the problems the U.S. has with the draft PPWT and how the PPWT would have to change to address them.
One of the main problems the U.S. states they have with the draft PPWT is there are no mechanisms to prevent anyone from attaining so called “breakout capability.” Having breakout capability means that nations can develop, test, and store prohibited weapons when they want to comply with the treaty. However, when they decide they want to break from the treaty they are ready to go with these types of weapons. This is problematic because it could put nations at a strategic disadvantage if they are not prepared to deal with these weapons. The draft PPWT does nothing to address this issue and it is the main issue the U.S. has with it. While Article II prevents the placement in orbit of any weapons it does not prohibit the research, development, production, and terrestrial storage of space-based weapons.2
Another issue not adequately addressed by the PPWT is terrestrial-based space targeting weapons. Like space-based weapons there are no prohibitions on the research, development, testing, production, storage, or deployment of these terrestrial weapons.3 Examples of terrestrial-based, space targeting weapons would be “direct-ascent ASAT interceptors, ground-based lasers, and jammers.”4
Another main problem the U.S. has with the PPWT is that there is no integral verification process.5 Without this process members would have to constrain themselves from these activities without knowing whether other members are doing the same. Again, this could put members at a strategic disadvantage. While the U.S. states that they support voluntary Transparency and Confidence Building Measures (TCBMs) they also state that such TCBMs are not a substitute for an effective verification regime.6
In order for the draft PPWT to become a treaty the U.S. would consider agreeing to there would have to be significant changes to some parts of it. The PPWT would have to prohibit the research, development, testing, production, or storage of both space-based weapons, and terrestrial-based, space-targeting weapons. The PPWT would also have to incorporate some type of verification process that goes beyond TCBMs. The problem with incorporating these types of clauses is that it would diminish other member’s strategic advantage against the U.S., which would make it less appealing for those members. It is hard to strike a compromise that everyone would agree on. However, even though it may be hard, pursuing a PPWT that works for everyone is something that should be pursued.
______________________________________________________________ 1 Conference on Disarmament CD/1847, 26 August 2008, pg. 2, 2 Id. at 4 3 Id. 4 Id. 5 Id. at 6. 6 Id. at 7.
Sara Hyde is a 2L at the University of Mississippi School of Law. She hopes to pursue a career in transactional law.
Remote sensing satellites have been in use for several decades, but the rules, regulations, and other legislation surrounding their use for surveillance is still not clear. The courts have made decisions on other types of surveillance that are similar in nature and use, but there are not yet definitive rules on satellites. While this area is still murky, the courts’ decisions on other methods can be applied to satellites. One such instance is the courts’ ruling the Fourth Amendment requirement for reasonableness when searching must be fulfilled.
Traditionally, law enforcement had to take certain steps before implanting different types of surveillance. The Fourth Amendment protects American citizens from “unreasonable searches”, including those by surveillance. http://caselaw.lp.findlaw.com/data/constitution/amendment04/. In order to determine whether a search was allowed, the search would have to be deemed reasonable. This requirement generally meant that the law enforcement officer or official would have to obtain a warrant, a document proving that the request for the search had gone through the proper channels and was verified as being a reasonable search. Remote sensing satellites may also require this measure, if the surveillance conducted is deemed to be a search. Yet, there are exceptions that do not require a warrant to fulfill the reasonableness standard to conduct one. One exception is “special needs”, which allows “[…]searches not based on individualized suspicion […]” (http://www.fas.org/sgp/crs/intel/RL34421.pdf). An example would be a search of persons or things that is conducted at the United States border. According to a report, “Satellite Surveillance: Domestic Issues” by the Congressional Research Service, not only does the issue of satellite surveillance fall under this exception, but the definition of what is reasonable may be more relaxed under this exception since “[…]fewer liberty interests are arguably at stake.”
This is a disturbing idea in that the reasonableness requirement may be less stringent in regards to this type of surveillance. Although, like the United States border, officials are interested in general safety, such surveillance used domestically seems different. While a border search is set up at a particular point to regulate entry and exit from the country, a satellite is in orbit over the earth and able to see any number of places, indiscriminately. Since there is not necessarily individualized suspicion required under this exception, a satellite used domestically would be surveying thousands of miles of the United States without a warrant to do so. While there is an interest in making sure that things traveling in and out of the country are legal, continual surveillance of a nation from space is far more intrusive.
As courts continue to examine issues concerning types of surveillance, satellites seem to be a huge question that needs to be addressed. While every branch of the government is acknowledging and working towards definitive answers, there is yet to be a consensus. Until such time that there is, remote sensing satellites will be lumped in with other means of surveillance. While these legal models on surveillance give guidance and are important to the legal future of satellites, they do not clear up all of the concerns voiced by government officials and citizens alike.
Todd Bowen is a 3L from Southaven, MS. He is pursuing a certificate from the National Center for Remote Sensing, Air and Space Law.
As discussed in my previous blog post, Justice Scalia uses an originalist method of interpreting the Fourth Amendment. In doing so, he turns to the 1765 English case of Entick v. Carrington for guidance. This case arose from events that occurred in November of 1762. John Entick sued Nathan Carrington, James Watson, Thomas Ardran and Robert Blackmore (messengers of the King) for trespass. A warrant was issued for Entick as one of the suspected authors of a set of weekly papers titled “The Monitor, or British Freeholder.” These papers contained “gross and scandalous reflections and invectives upon His Majesty’s Government, and upon both Houses of Parliament. The four messengers were given orders, “to make strict and diligent search for the plaintiff…to seize and apprehend and bring together with his books and papers in safe custody, before Early of Halifax.” In carrying out these orders, the men broke into Entick’s house and remained there for four hours while searching rooms, breaking open boxes, and reading private papers.1
Lord Camden ruled, “The great end, for which men entered into society, was to secure their property. That right is preserved sacred and incommunicable in all instances, where it has not been taken away or abridged by some public law for the good of the whole.” Camden further states that, should someone enter another person’s property without permission, that person “is liable to an action, though the damage be nothing.” However, even with the permission of a public law, Camden suggests the search and seizure must remain reasonable. For example, the messengers “did not take with them a constable” and “did not bring the papers to the earl of Halifax to be examined.”2
The Supreme Court describes the outcome of the Entick case as being “welcomed and applauded by the lovers of liberty in the colonies as well as in the mother country. It is regarded as one of the permanent monuments of the British constitution.”3 This leaves no doubt that the ruling was on the minds of the drafters of the Fourth Amendment. The Fourth Amendment states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” This is nearly a point-by-point copy of Lord Camden’s ruling.
As with Entick, the case of U.S. v. Jones involves a trespass (placing a GPS tracker onto the underside of a vehicle) with the intent to uncover information. Rather than decide on the reasonableness of the information collection, Justice Scalia bases his decision on the simple fact of trespass. It seems this is the safest choice that changes the least amount of Fourth Amendment precedent. However, as the concurring opinions point out, changing technology will make an Entick comparison harder, forcing a decision based on the reasonableness of the search rather than trespass. This may not have been the right case to expand the protections of the Fourth Amendment, but the concurring justices hint that it is only a matter of time.
_________________________________________________ 1 Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765). See http://www.constitution.org/trials/entick/entick_v_carrington.htm 2 Id. 3 Boyd v. U.S., 116 U.S. 616, 626, 6 S.Ct. 524, 530 (U.S. 1886)
MT Smith is from Jacksonville, FL and grew up in a military family, moving around the U.S. He calls Jacksonville, FL and Charlotte, NC home. MT graduated from the University of North Carolina at Wilmington with a Bachelor of Arts degree in Communication Studies. He then pursued a career in Naval Aviation as a pilot in the US Navy, flying multiple aircraft with his primary platform being the Navy’s E-6B Mercury. His many deployments as an Aircraft Commander and Mission Commander in support of USSTRATCOM’s TACAMO and Looking Glass operations fueled his interests in the arena of Communications and National Security issues as well as Air and Space Law. He is in his second year of law school at The University of Mississippi where he hopes to earn the National Center for Remote Sensing, Air and Space Law Certificate.
The Outer Space Treaty promotes, among many issues, the peaceful use and exploration of outer space by all. Article I states, “Outer space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.”1 For the most part, this standard of outer space use has been effectively and justifiably acted upon by the international community. However, as with almost any standard or law, its limits have been tested by States acting to further their own strategic, and often unlawful, advancements. The Democratic People’s Republic of Korea (DPRK), for example, have taken the original context of Article I of the Outer Space Treaty and manipulated their missile testing agenda to conform to the guidelines within. The concern for this vague framework within the treaty is that it seems to leave the door for interpretation wide open to States with hidden agendas, and often leaves the international community scrambling to confront the issue as well as find peaceful means of curtailing such challenges to the Treaty. How these States manipulate the intentions of the Treaty, and how the international community can limit these deceitful strategies are two central issues with maintaining harmony within the international community as well as international safety at home and in the exploration of space activities.
Prior to the 2009 launch of the UNHA-2 launch vehicle, in an article published by the Korean Central News Agency of the DPRK, a spokesman for the Korean Committee of Space Technology claimed, “the DPRK envisages launching practical satellites for communications, prospecting of natural resources and weather forecast, etc. essential for the economic development of the country in a few years to come and putting their operation on a normal footing at the first phase of the state long-term plan for space development.”2 This statement goes deeper than the DPRK’s claimed desire to further their space presence for simple weather forecasts promoting economic development. It is a statement that marries their space technology claims with that of the current Outer Space Treaties “peaceful purposes” stance and “free access to all areas of celestial bodies” standard. This manipulative rhetoric not only seems to buy the DPRK time in their space development program, but makes it difficult for the international community to truly know whether their space programs are being progressed for peaceful purposes or possible illegal missile development. These predicaments are but only a fraction of the overall international dilemma with the vagueness of the Outer Space Treaty. On the backside of the equation is how the international community can not only enforce the Treaty, but find peaceful measures to counter the blatant challenges brought by States with hidden agendas.
With a core theme of the Outer Space Treaty endorsing “peaceful purposes,” methods of enforcement of law and prevention of dangerous motives is often a difficult play for the international community. In an effort to peacefully maintain the intentions of the Treaty while effectively dissuading the manipulation of the Treaty and development of illegal and harmful programs, the difficulty lies in establishing and carrying out an effective platform that conforms to the values established within international law and meets the growing needs of internationally policing conspiratorial States. One such attempt seen was the North Korean Moratorium on Missile Flight Tests between the United States and the DPRK. As a result of the agreement, “The DPRK, upon request by the US and with a view to maintaining positive atmosphere for the DPRK-US high-level talks, agreed to a moratorium on nuclear tests, long-range missile launches, and uranium enrichment activity at Yongbyon and allow the IAEA to monitor the moratorium on uranium enrichment while productive dialogues continue.”3 These ceased activities came at the exchange of much needed food based aid for the continued hunger concerns plaguing the DPRK.4 The moratorium did take a positive step forward in both enforcing the law and curbing the development of illegal missile systems. By having inspectors able to access facilities, as well as capping “Pyongyang’s missile capability … verifiable by US early warning satellites,” the agreement seemed to take a peaceful, yet effective stance on enforcement.5 In their effort to dissuade the current regime from challenging the law so as not to lose the critical humanitarian aid its people so desperately needed, another peaceful yet active control measure was in place, once again satisfying many international concerns.
Although the North Korean Moratorium on Missile Flight Tests, on its face, seemed to be a step in the right direction, there were, inevitably, as seen from the results, concerns and loopholes. Although receiving aid for its people, at any given time, the DPRK could launch, and they did in April of 2012 with the launch of UNHA-3. Although, ultimately, the North Korean Moratorium on Missile Flight Tests was short lived, it was not a cause in vain. A House Committee on Foreign Affairs discussed the failed launch of the UNHA-3 and summed up the moratorium as “a noble and justified expense and gesture to the North Korean people, though there’s a challenging path to walk between attempting to keep millions of North Koreans from starving to death while still pressuring the government effectively.”6 The point is, there may never be a precise answer to the questions that plague the international community in regards to peaceful space programs, but there must continue to be global leaders willing to take the initiative to think between the lines and advance effective ideas to the international forefront, for as long as there are treaties defining legal guidelines, there will be States that will continue to advance their national interests above and beyond any international regulation.
___________________________________________________________________ 1 UNITED NATIONS TREATIES AND PRINCIPLES ON OUTER SPACE, http://www.unoosa.org/pdf/publications/STSPACE11E.pdf. 2 Preparations for Launch of Experimental Communications Satellite in Full Gear, (February 25, 2009), KCNA.CO.JP, http://www.kcna.co.jp/item/2009/200902/news24/20090224-06ee.html. 3 David Wright, North Korean Moratorium on Missile Flight Tests, (March 14, 2012), ALLTHINGSNUCLEAR.ORG, http://allthingsnuclear.org/post/19307350220/north-korean-moratorium-on-missile-flight-tests. 4 Id. 5 Id. 6 House Committee On Foreign Affairs Convenes to Discuss North Korea’s Recent Failed Rocket Launch and New Leader, ORWELLSHANKY.WORDPRESS.COM, (April 19, 2012), http://orwellshanky.wordpress.com/tag/icbms/.
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. 6 Id. 7 Id. 8 Id. 9 Id. at 956.
Tyler Pittman is a 2L at the University of Mississippi School of Law. He is fascinated by American criminal law, by space law, and by international law. He is pursuing certificates in Space Law and Criminal law at Ole Miss.
In Part V of his concurrence in U.S. v. Jones, Justice Alito discusses the implications technology has on modern searches. In essence, he talks about what is commonly called the Mosaic Theory.1 The Mosaic Theory suggests “prolonged surveillance reveals types of information not revealed by short-term surveillance.”2 The idea is that anyone can see the activities of an individual over a short period of time, i.e. a tile of the mosaic, but no one can see an individual’s entire course of activity over an extended period of time, i.e. the entire mosaic. Justice Alito and the three justices joining in the concurrence suggest that a reasonable expectation of privacy exists from being observed over an extended period.
With the progression of technology, the Mosaic Theory has become a sound basis for argument against warrantless searches using tracking technology, and it is highly relevant to remote sensing space technology. Satellite observation, in whatever manner, is almost limitless. Satellite constellations can be set up to view the entire earth at almost any time, and this means that for a person under government surveillance escape is impossible.3 If the government is allowed to observe citizens using satellite technology without a warrant requirement, it necessarily leads to an outcome where a person has no subjective expectation of privacy outside the home. This eliminates the first prong of the Katz analysis, supra, and as a result eliminates the analysis altogether. Having that happen would be catastrophic in Fourth Amendment jurisprudence, “for the Fourth Amendment protects people”, and thus their privacy.4 Society certainly would not approve of anyone following an individual for extended periods while observing that individual’s every move. Katz rightly recognizes society’s interest in individual privacy, and allowing warrantless observation from space would undermine the very basis of Fourth Amendment jurisprudence.
While the Mosaic Theory offers argument against warrantless searches from space, it also inherently supports a modified Kyllo analysis for these searches.5 The basis of the theory is that one cannot see another’s every move without some extra effort. Kyllo focuses on a person’s inability to obtain information without sense-enhancing devices. In effect, extending Kyllo beyond the home would offer constitutional protection that is already in consideration among the courts.6 Sense-enhancing devices allow the government to see the entire picture. Whether there is a wall, roof, or 200 miles of atmosphere between the place being searched and the official, sense-enhancing technologies, like remote sensing, endanger subjective expectations of privacy that the Fourth Amendment has long protected. It seems from support of the Mosaic Theory that courts would be apt to apply Kyllo-like reasoning to situations involving searches from space and thus would not allow privacy protection to collapse.
_________________________________________________ 1 U.S. v. Jones, 132 S.Ct. 945, 963-964 (2012) 2 U.S. v. Maynard, 315 F.3d 544, 562 (D.C. Cir. 2010) 3 Cf. Wright, Grego & Gronlund, THE PHYSICS OF SPACE SECURITY 33-34 (Cambridge, American Acadamy of Arts and Sciences 2005) 4 Katz v. U.S., 389 U.S. 347, 351, 88 S.Ct. 507, 511 (1967) 5 Kyllo v. U.S., 533 U.S. 27, 40, 121 S.Ct. 2038, 2046 (2001); See Part II of this post – Constitutional Searches From Space – Part II: Kyllo v. United States, California v. Ciraolo, and Satellites as Sense-Enhancing Devices 6 See Maynard, supra; See also Jones at 963-964