United States v. Jones - Technology v. Law
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I have as much privacy as a goldfish in a bowl
(Princess Margaret)
Rapid development of technology and its application by police may bring outcomes leading to infringement of the rights to privacy of the person and possession. The Fourth Amendment to the US Constitution (hereinafter ‘the Amendment’) reflects the concern for protecting privacy of the person and possessions as against unreasonable search. It states that ‘the right of the people to be secure in their persons (…) against unreasonable searches (…) shall not be violated.’ [1] The Amendment’s protection, however, is limited by the interpretation of the phrase ‘unreasonable search’. This phrase was never well defined, and its definition has become increasingly blurred by the technological advances, such as Global Positioning System (GPS), which is a part of a satellite-based navigation system. [2] As found by the US Supreme Court in United States v Jones (2012) [3] the application of GPS by police through attaching it to a suspect’s vehicle eroded privacy protection in favor of law enforcing police and constituted a search under the Amendment. This note offers a critical analysis of the Jonas case and considers whether the court reached the optimal result. It is submitted that the ‘reasonable expectation of privacy test’ is too vague to be an adequate test of whether a certain measure has been a breach of the Amendment in light of recent advances in surveillance technology.
Background to the Research
Prior to the Jonas case there have been a number of Supreme Court cases that consider the use of surveillance technology and the rights to privacy of the person and possession. Their analysis is crucial for one to assess the merits of the test.
United States v Knotts (1983)
A first point of reference for the Justices in the Jonas case is United States v Knotts (1983). The police officers, in this case, used a beeper (an electric device) and attached it to the barrel of chloroform which (a) was not owned by the suspect before the beeper was attached and (b) was placed on the vehicle by the suspect himself. The police for three days then monitored the vehicle. The Supreme Court held that one does not have a reasonable expectation of privacy on a public street, where anyone who looks can see that they are traveling on a certain road in a certain direction. The Amendment was not designed to prevent technological innovations from aiding law enforcement officers.
United States v Katz (1967) [4]
The second case, which received most consideration from the Justices in the Jonas case is United States v Katz (1967). In this particular scenario FBI agents placed electronic listening and recording devices on the outside of the booth recording conversations held by Katz when he was making illegal gambling bets. The Supreme Court held that this was an intrusion into Katz’s reasonable expectations of privacy and concurred, stating that Amendment questions followed a two-part test: (1) whether there is an actual, subjective expectation of privacy; and (2) whether the expectation is objectively reasonable. Since then this test has been introduced in Amendment cases, such as the Jonas one.
United States v Jones (2012)
In the Jonas case, the police attached a GPS tracking device to the bottom of Jones’s vehicle and monitored its movement for 28 days. The Supreme Court unanimously agreed that the use of the GPS resulted in a search, but had two contradictory views as to why. The Court’s decision, in respect of the actions taken by the police and the respondents’ rights to privacy, was reached on the basis of the Amendment and relevant case law. It will now be discussed whether this decision was optimal.
Arguments For/Against
Justice Scalia has drawn arguments supporting the respondent’s rights to privacy on the basis of the police’s physical intrusion on the respondent’s vehicle, which, in his opinion, constitutes a search within the original meaning of the Amendment. Justice Scalia argued that the Katz case ‘reasonable expectation of privacy’ test does not repudiate this interpretation; contrariwise it makes it more convincing. Scalia was joined by Chief Justice Roberts and Justice Anthony’s opinions that even though driving on public roads may be visible to the public, people have a reasonable expectation of privacy in their total movements over the course of a month. Furthermore, it has been argued that Knotts is distinguishable from Jonas because the electronic device was not placed on property already possessed by the defendant. Consequently, in Jonas the Justices followed the opinion that the police physically encroached on a private area to gather information, hence infringed upon the respondent’s rights to privacy.
One might reject the above conclusions: firstly, by arguing that any technical trespass that results in the gathering of evidence amounts to a search; secondly, by asserting that the case should have been analyzed under the Katz standard, one may argue that people have no expectation of privacy while driving around on public streets. Since the use of technology does not change the fact that all of Jones’s movements were in public and that anyone could have seen where he was driving at any time, he was acting publicly. Thirdly, one may argue that because GPS technology is relatively easy and cheap, it overcomes traditional practical constraints on close surveillance. From this point of view one may raise a question whether it is a violation of society’s expectation if the police do not monitor all of the suspect’s movements in his vehicle for 28 days. However, the length of the time (28 days) presents a counter-argument in support of the Justices’ finding. While relatively short-term monitoring of an individual’s movements on public streets may be reasonable, ‘the use of longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’ [6]
Conclusion
For all of these reasons, even the most privacy-minded Justice is likely to recognize caveats and exceptions in crafting a new rule for GPS tracking given the vagueness of the ‘reasonable expectation of privacy test.’ Based on the ambiguities in the decision one may argue that the court reached the optimal results ‘in circumstances involving dramatic technological change.’ [7] This indicates, however, that ‘the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way’. [8]
...... and to introduce the highly appreciated balance between law & technology
References:
[1] The Fourth Amendment (Amendment IV) to the United States Constitution.
[2] Mohinder S Grewal and Lawrence R Weill and Angus P Andrews, Global Positioning Systems, Inertial Navigation, and Integration (2nd edn, John Wiley & Sons 2007) 2.
[3] United States v Jones 132 S Ct 964 (2012).
[4] United States v Knotts 460 US 276 (1983).
[5] United States v Katz 389 US 347 (1967).
[6] United States v Jones (n 5).
[7] Ibid.
[8] Ibid.
[9] BBC, The Blue Planet (BBC 2017).
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