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Supreme Court Rules That A Warrant Is Needed For GPS Tracking

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02.10.2012 | Advisory

On January 23, 2012, the United States Supreme Court issued its decision in United States v. Jones, unanimously holding that the attachment of a GPS tracking device to an individual’s vehicle and the tracking of that vehicle’s movements for a four-week period violated the Fourth Amendment’s prohibition against unreasonable searches. Although all of the justices concluded that the Fourth Amendment had been violated, their rationales varied significantly.

Justice Scalia, writing for the majority (and joined by Chief Justice Roberts and Justices Kennedy, Thomas, and Sotomayor), applied historic trespass theory to find the Government’s acts unconstitutional. This property-based approach is grounded in early Fourth Amendment jurisprudence, which focused primarily on a physical intrusion. In the instant case, the Court found that the Government encroached upon a protected area when it placed the device upon the undercarriage of the vehicle in order to monitor its whereabouts. Although this kind of physical act is exactly the kind of conduct the Fourth Amendment sought to protect against at the time it was adopted in 1791, Justice Scalia acknowledged that physical contact is no longer necessary to find a Fourth Amendment violation. Indeed, many cases discussing search and seizure in the last fifty years have relied upon the “reasonable-expectation-of-privacy” test and have expressly recognized that a trespass is unnecessary to find a constitutional violation. But by narrowing the analysis to a question of trespass, Justice Scalia avoided what he deemed to be “thorny problems” of whether or not long-term electronic surveillance without an accompanying physical intrusion is an unconstitutional invasion of privacy. Thus, this opinion rested on the narrowest possible grounds and avoided, at least for the time being, difficult issues concerning privacy in an increasingly technological world.

A concurring opinion by Justice Alito (and joined by Justices Ginsburg, Stevens, and Kagan) arrived at exactly the same conclusion—the placement of the GPS device and subsequent tracking constituted an unreasonable search. He, however, found the property analysis strained and no longer operative. Justice Alito instead insists that the reasonable-expectation-of-privacy test is the only test to be applied. In applying that test, there can be no question that the four week tracking of every movement of the vehicle, at some point, became an unreasonable search. Justice Alito noted that the precise date on which that line was crossed is unclear, but where uncertainty exists “the police may always seek a warrant.”

Justice Sotomayer joined the majority, but filed a separate concurring opinion. Her opinion raises many questions about reasonable expectations of privacy in an age of overwhelming digital data. She posits that it may, in fact, be necessary to revisit the question of whether an individual has a reasonable expectation of privacy when she discloses any information to a third party given the enormous volume of such information shared each day when undertaking even the most mundane tasks—such as, checking our e-mails, making online purchases, or accessing our smart phones.

United States v. Jones probably raises more questions than it answers. Justice Scalia explicitly stated that he had no interest in “rushing forward to resolve them here.” But it seems inevitable that the Court will continue to grapple with questions related to a person’s reasonable privacy expectation in light of the vast amount of information routinely exchanged on a daily basis and the increasingly central role technology plays in most of our lives. The Supreme Court’s reluctance to tackle these issues more head on likely reflects their own awareness that rapidly changing and evolving technology makes it difficult to establish a legal framework that can anticipate emerging issues and therefore have any long term relevance. A retreat to the time tested theory of trespass may well have been the safer, if not most satisfying, course.

If you would like additional information on this issue, please contact Heather B. Repicky, an associate in the Intellectual Property Litigation practice group at Nutter McClennen & Fish LLP.

This update is for information purposes only and should not be construed as legal advice on any specific facts or circumstances. Under the rules of the Supreme Judicial Court of Massachusetts, this material may be considered as advertising.

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