SCOTUS decision on warrantless GPS surveillance produces an unexpected friend of privacy

by Eileen McGuire-Mahony | 3:00 pm, January 25, 2012 | Comments Off

Read the news long enough and you will find yourself agreeing with people you never thought you could like.

Such as Sonia Sotomayor.

Earlier this week, in U.S. v. Jones, the nine wise souls of Washington ruled – and unanimously at that – that planting a wireless GPS on a man’s car constitutes a search.  Given that the search was carried out sans warrant, the search and the man’s ensuing conviction was thrown out.

All in all, twas a nice surprise in a country that seems to be sliding toward less and less privacy all the time.  The decision was a very narrow one; writing for the Court, Scalia noted that covertly tracking a man’s every movement for nearly a month would violate a reasonable man’s “expectation of privacy.”  That, however, was tempered; as the actions that led to conviction constituted a search and as the search was bad, the entire thing fell apart on Fourth Amendment issues – there was no need to delve into reasonable, subjective expectations of privacy in the case at hand.

What’s interesting is Sotomayor’s concurring opinion, one in which she notes the massive role that electronically conveyed data have come to play and suggests the time has come for a broader re-imagining of what privacy means and how the Fourth Amendment ought to be applied.

As she correctly writes, wise jurisprudence requires preserving the protections inherent in the Fourth at the time it was adopted, at a minimum.  From this, we get, “a Fourth Amendment search occurs when the government violates a subjective expectation of privacy that society recognizes as reasonable.”

The explosion of the cyber age has birthed ways to communicate, ways to store information, and ways to spy that were inconceivable a generation ago, let alone in the 18th century.  While the Founders did not imagine e-mail and cell phones and GPS, they did not approve of the state knowing a citizen’s every communication and movement.

The threat presented by the current situation far exceeds anything previously possible; surveillance has grown so inexpensive and so easy that people who would never have come under intense government scrutiny now face a very real diminished privacy.  The state also suddenly enjoys an ability to conduct surveillance without anyone – the target or potential witnesses – ever knowing, and to aggregate massive databases they might sell, share, and mine for years.

A “reasonable” expectation of privacy will certainly change in the wake of technology, and some have certainly suggested that change will equal a largely passive acceptance of diminished or non-existent privacy.  Such people, though, tend to be ones who stand to gain greatly from just that outcome and who guard their own privacy fiercely.  Sotomayor’s thought are more realistic and, it is devoutly to be wished, more accurate:

I would ask whether people will reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain , more or less at will, their political and religious beliefs, sexual habits, and so on.

At risk with technology’s continued growth and without a corresponding check of the state’s ability to misuse it, is a chilling effect, citizens’ behavior conditioned by a fear that any number of government agencies could be watching or listening at any time, that anything in their past might be known to the state, and that they will never be sure.

This fear leads Sotomayor to make the most audacious suggestion in  her opinion; that the time has come to reconsider denying any expectation of privacy when someone has divulged information to a third party.  Coming from any federal government employee at all, let alone an appointee of someone like Barack Obama, this is startling – in a great way.

In the past, the government has argued that having shared information with any third party at all destroys the ability to later claim an invasion of privacy or to assert a right against self-incrimination.  Were it not for the various privileges, we’d be in an even worse spot.  However, the reality is that each of us shares sensitive information with all kinds of people and companies in the course of our day-to-day lives.

We provide medical histories in order to receive care, sign off on background checks so that we might get job offers, and implicitly consent to Internet and phone providers logging details of our usage.  We unburden ourselves to close friends, share financial information with tax preparers, and generate rafts of intimate details whenever we are a client, patient, user, applicant, or student.   That does not at all mean anyone of us would like such material to be available to the wide world, or to the government for its leisured perusal.  It certainly does not mean we’d be comfortable with the government aggregating every existing source to paint rich portraits of our personal lives and use them at their discretion.

In short, absolute secrecy should not be a legal prerequisite to recognize that someone has displayed a subjective, and reasonable, expectation of privacy.

Sotomayor now looks to be a key fifth vote on potential future cases impacting privacy.  Her concurrence in Jones is certainly a bright spot in an atmosphere where abuses of technology race ahead of law and policy.

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