Editor's Note :

close editor's note Editor's Note :

On Monday the Supreme Court will release orders from the June 21 conference at 9:30 a.m. and one or more opinions in argued cases at 10 a.m. We will live-blog at this link, where readers can sign up for an email reminder when the live blog begins.
We're hosting an online symposium on October Term 2017’s separation-of-powers and administrative-law decisions. Contributions are available at this link.

Tejinder Singh Contributor

Posted Mon, October 24th, 2011 8:19 am

United States v. Jones

Today in the Community we are discussing United States v. Jones, which asks whether the government violated the Fourth Amendment when it attached a GPS tracking device to an individual’s vehicle without his permission or a warrant, and then used the device to monitor his movements. In the threads below, please provide your thoughts about the issues in the case.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on how the Supreme Court should decide the case.

    • Alan Butler – 1 Promoted Comment

      In its amicus brief to the Court, the Electronic Privacy Information Center (EPIC) argues that low cost and increased access to GPS tracking technology enables pervasive, mass surveillance of the American public by law enforcement. Such surveillance is inconsistent with the Fourth Amendment’s protections “against unreasonable searches and seizures.” Today’s GPS tracking systems allow precisely the sort of impermissible “dragnet-type law enforcement practices” foreshadowed in the Supreme Court’s decision in US v. Knotts.

      Significantly, this case implicates both the “reasonable expectation of privacy” Fourth Amendment standard as well as the more traditional property-based standard. Both claims have deep roots in Fourth Amendment law. In fact, in the first test of the application of the Fourth Amendment new surveillance technologies, Olmstead v. US, the Court followed a property-based analysis and found no privacy violation. In this case, however, the police installed the tracking device on Jones’s vehicle. So, the Court could find a violation of the Fourth Amendment under either theory.

      In Commonwealth v. Connolly, the Massachusetts Supreme Court, when confronted with similar facts, concluded that such tracking is subject to Constitutional standards. The Supreme Court should reach the same conclusion in this case.

    • Kendall Burman – 0 Promoted Comments

      A key factor in US v Jones is the fundamental difference between GPS tracking and the kind of bumper beepers at issue in US v. Knotts, the 1983 case where the Court upheld the use of beeper surveillance on public roads without a warrant. As the Center for Democracy and Technology, EFF and leading scientists laid out in our amicus brief, GPS tracking does not augment human observation but rather produces a totally different kind of evidence.

      A beeper is a low-powered radio that emits a signal that can be picked up by a receiver. It is used to assist police engaged in visual surveillance and to re-establish surveillance if they lose sight of the vehicle. GPS tracking, by contrast, is entirely automated and allows the police to monitor a target from a remote computer without ever having to observe or follow the target themselves.

      GPS tracking compiles data of precise coordinates showing the target’s locations and this can then be introduced in court. Beeper surveillance does not create any independent record and it is the officer who testifies at trial about what he observed of the target’s location with the assistance of the beeper. Because of the precision and volume of GPS data, police can use this information to reveal long-term patterns of movement, from which any number of facts about a person can be deduced–from what church someone attends to whether they frequent a certain doctor’s office.

      Using beeper surveillance for anything other than a short period of time requires significant personnel and other resources. It is simply not possible to achieve large-scale monitoring through beeper surveillance the way it can be conducted through GPS tracking.

      For all of these reasons, the Court should look beyond its holding in Knotts and rule that government use of GPS tracking intrudes on a reasonable expectation of privacy — the average person is reasonable in expecting that he will not be subject to electronic tracking by a system of satellites maintained by the US military – and therefore is a search for Fourth Amendment purposes.

    • Sharon Franklin – 1 Promoted Comment

      As a result of recent advances in technology, most people today constantly carry personal tracking devices in the form of cellphones and other handheld electronic devices. These handheld devices, as well as Global Positioning System (GPS) and other technologies, provide the capability to precisely track individuals’ movements; as technology continues to improve, location tracking will only become more accurate. The Constitution Project submitted an amicus brief in the Supreme Court in United States v. Jones urging the Court to ensure that these transformative changes in technology do not undermine the protections of property interests and privacy rights that the Framers enshrined in the Fourth Amendment. Warrants should be required whenever law enforcement seeks to rely on sophisticated electronic tracking technologies.

      First, our brief contends that when the government attaches a GPS device to private property without a warrant, it infringes upon the owner’s property interests and is an unlawful seizure under the Fourth Amendment. Federal agents trespassed upon Jones’s vehicle two times — when they first installed the GPS device and when they returned later to change the battery on the device — thus violating his Fourth Amendment property interests. This property interest is distinct from any Fourth Amendment privacy violation; the Supreme Court has always maintained that the Fourth Amendment protects possessory property interests even in cases implicating no privacy deprivations. Before federal agents tampered with and commandeered Jones’s vehicle for use as a surveillance device, they should have obtained a valid warrant. Although Jones was still able to operate his vehicle without interference, installing the GPS device deprived Jones of his right to exclude others from using his property.

      Second, prolonged warrantless GPS monitoring invades an individual’s privacy and is an unlawful search under the Fourth Amendment – even if the individual is traveling on public roads. GPS technology can autonomously and continuously render precise location information; data collected over a period of time can reveal otherwise imperceptible patterns of behavior, or an individual’s “way of life.” The government’s use of GPS technology to monitor a person’s location completely eliminates the need for human involvement in surveillance and violates reasonable expectations of privacy. GPS goes above and beyond human capabilities. A GPS device can track where law enforcement agents cannot; a person under police surveillance can easily be lost, either because the subject purposefully loses his tail, or through human error. Further, GPS enables the tracking of significantly more people since resource constraints typically do not permit extensive surveillance of numerous subjects. Thus, absent a warrant requirement, law enforcement would be able to track anyone anywhere and for any reason or for no reason. The Fourth Amendment must be extended to the digital age to ensure that rapid advances in GPS and other technology do not continue to infringe upon the critical protection for personal privacy that the Fourth Amendment has provided against an all-knowing and all-seeing government.

      Our brief is based on the recommendations of The Constitution Project’s bipartisan Liberty and Security Committee, which includes national security, privacy, and other experts from across the political spectrum. The Committee recently issued a Statement on Location Tracking, concluding that the Fourth Amendment requires law enforcement to obtain a warrant before using GPS technology to track an individual’s movements for a prolonged period of time and before installing a tracking device on an individual’s property. In addition to using GPS technology, the government is currently able to — and does — track our movements using our cell phones, laptop and tablet computers, and other handheld electronic devices without first obtaining a warrant. While these technologies are understandably useful for law enforcement officers in their efforts to combat and prevent crime, it is critical that we carry forward Fourth Amendment safeguards into the Digital Age. Warrants based upon a showing of probable cause should be required.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on how you think the Supreme Court actually will decide the case.

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment on the potential significance of the Supreme Court’s decision in this case.

    • Wesley Oliver – 1 Promoted Comment

      United States v. Jones has been one of this term’s most watched cases. On one level, it is easy to see why the case has attracted so much attention. The facts are easy to grasp and most average Americans have had occasion to think about modern technology’s impact on privacy. Most of us carry around tracking devices inside our cell phones like the ones law enforcement officials attached to Jones’ car, and that information is disclosed to third parties. Cell phone providers sell information about our movements to retailers who are able to target their advertising — alerting us nearby cheap gas or sales on shoes. Such disclosures are, at least theoretically, done with our consent, but virtually no one reads the fine print in subscriber contracts.

      The proliferation of tracking technology has made the American public sensitive to the extent of information the government could gather about any of us. Alternatively, it has revealed the usefulness of technology in busting drug conspiracies or ferreting our terrorists.

      For those familiar with criminal procedure, however, the direct implications of this case, do not seem to justify the attention the case has received. This is not because the privacy issues are not fascinating, or at the cutting edge of rapidly emerging technology. The attention the case has received suggests that the decision might could make it harder for police to attach GPS trackers to cars. The reality is that, no matter how the case is decided, it will not dramatically change the ability of officers to place these devices on cars in any individual case.

      At most, the Court could conclude that warrants are required to use these devices. Civil libertarians cling to a notion that a neutral and detached magistrate will scrupulously review the affidavit supporting a search warrant and grant only those requests support a finding of probable cause. The reality is that almost no search warrants are denied. And, in many states, magistrates are required to possess nothing more than a high school diploma. Once these warrants are issued — as they most often are when requested — they are virtually unchallengeable and insulate the evidence obtained from suppression and the officers conducting the intrusion from lawsuits. United States v. Jones, in individual cases, could at most have only the modest impact that officers will have to go through the administrative hassle of applying for easily-obtained warrants.

      The civil libertarian benefit to warrants is thus not the impact they have on most individual cases. Requiring warrants in all GPS cases, does however, have a benefit, albeit a much more attenuated benefit. Requiring police to apply for warrants, which they will surely be granted in most cases, creates a public record revealing enforcement patterns. If police departments allocate their resources disproportionately against racial minorities, or for the protection of affluent communities, or toward less serious crimes, such improper biases may be revealed in the patterns of their requests for GPS tracking devices. Media organizations and watchdog groups have access to the warrants and affidavits supporting the warrants granted. Public criticism of enforcement patterns could have a dramatic impact on police behavior.

      It seems doubtful, however, that the case would have generated this much attention if the media realized that, as a practical matter, this case was more about the records police have to make of their conduct, rather than the scrutiny police would face when requesting warrants.

    • Earl Killian – 0 Promoted Comments

      I wish to pose some questions about implications of a ruling in favor of warrant-less GPS devices:

      1. Suppose one concludes that installation is allowed by the 4th amendment. The installation process for these devices is sometimes very invasive. Sometimes the police hook up the device to the car’s electrical system, in effect modifying the vehicle. What if the police discover something about the car during this process. Is this an illegal search? If not, does it open a loophole for allowing car searches without a warrant? How far can one take the modification of the car before it crosses the line? (e.g. suppose the car were shielded, so it was necessary to defeat the shielding to get the GPS signals in, and the transmitted information back out–would that be legal?)

      2. Again suppose one concludes that installation of a device in a car is allowed. Is then the installation of a device in a home allowed, so long as it only monitors the outside of the home? Could one attach a device to the electrical wiring of a home to send video of the front yard? Could use the home’s WiFi to transmit the information back to police head HQ? At what point does this cross the line? What about the back yard? Does it depend on the privacy of the back yard? How does the first question apply in this situation?

  • Tejinder Singh – 1 Promoted Comment

    In this thread, comment more generally on the relationship between constitutional law and technological advances.

    • – 1 Promoted Comment

      The first case that came to mind after reading this topic was Kyllo, in which police used heat sensing technology in 2001 to detect lamps used to grow marijuana inside a building without a warrant. The Court focused on the fact that the technology basically allowed the police to see into the building, a barrier the constitution and society want to protect from prying (unwarranted) eyes. I see this as the Court imagining the low-tech analogue of the new technology (seeing into the house), and deciding whether that would be constitutionally tolerable.

      In this case, the low-tech analogue would simply be observation. Police are allowed to observe people and things in public as much as they want, without a warrant. One distinction is that the police would be able to monitor many more vehicles at once than if they simply followed the vehicles, which seems somewhat Orwellian and scary. Another distinction is that when the car enters private property and would come out of the plain-view of a human, the GPS device would continue to monitor the vehicle’s location.

      This may be of little concern in some situations, such as a residential garage, where observation would yield the same result and wouldn’t give the police more information than the constitutional, low-tech analogue. Other situations raise concern, like on a private ranch or farm, where one couldn’t see the vehicle’s movement from public property. I know that isn’t the issue in this case, but it is an important consideration because I see that situation as the logical equivalent of the Kyllo case, where the new technology was ruled unconstitutional when not used along with a warrant.

      I think the use in this case will be held constitutional, but I’m not sure legally, does anyone else know more about this area of constitutional law?

  • Joe Cocurullo – 0 Promoted Comments

    I think your focus on record-keeping and the oversight this can bring is a good one.

    The focus on how few warrants are denied shouldn’t be taken that far. After all, we can note that most defendants plea or otherwise are found guilty. This doesn’t make the various protections, often not even at issue if the defendant pleas, unimportant. This is partially given the breadth of the cases: there are so many people involved, even a small number of cases where restraint is shown matters.

    “And, in many states, magistrates are required to possess nothing more than a high school diploma.”

    A college diploma is not necessary in these cases. What is necessary are magistrates that are fair and attuned to the details of the case. If a college diploma was necessary, our jury system would only have blue ribbon panels. The tech savvy nature of high school students over their more educated parents and grandparents is telling in technology matters of this type as well.

    The significance overall is that GPS is but one aspect of a broader collection of information in this national surveillance state of ours and this case has the potential to say something about that. Prof. Kerr argues that the case should go the way of the government because “public” information is provided. If 24/7 surveillance of this type is upheld, however, it would be a major concern.

    The SCOTUSBlog page on this case provides briefs and one issue raised is the government putting a GPS on the car and if this is a “seizure.” This too is an interesting area. Finally, if GPS information can be collected from a third party ala phone numbers or bank records, that would be a major move. This case overall might require the SC to truly enter the 21st Century.

  • Erin Murphy – 1 Promoted Comment

    Three points:

    1. Given that there are two Supreme Court cases on the books that address location tracking (e.g. the radio frequency based beepers in Knotts and Karo), I think that it is immensely important that the Court acknowledge that the changing nature of location tracking technologies affects the constitutional analysis. Even a categorical label like “GPS trackers,” used by many courts, is often overbroad inasmuch as it lumps many devices together and thereby conceals meaningful variations among them that should be considered with respect to the legal doctrine. A recent paper by Ian Hebert (forthcoming in the Berkeley Journal of Criminal Law) examined the technological specifications of a number of location tracking devices over time (including those used in Karo and Knotts), catalogued the key variables, and then analyzed their legal significance. Just to give a sense of some of these observations, he argues that devices should be classified according to the manner in which data is collected (radio-frequency, satellite, cell-site triangulation, or infrared beams); the manner in which data is conveyed, particularly with regard to the degree to which law enforcement must stay actively engaged with the target to acquire information (remote real-time transmission, passive collection of real-time information that must be physically retrieved from a device, real-time transmission requiring proximity); the durability of the data (how much material a device can store or transmit); the longevity of the device (how long the device can operate without intervention); the precision of the technology (in terms of the accuracy of the information and the precision with which it expresses that information); and the power source of the device (short-term batteries, long-term batteries, connected to automobile or user’s source). This kind of sensitive analysis is important regardless of the rule ultimately espoused, because it avoids falling into the trap of thinking that one concept (“location tracking”) is a fair descriptor of what is instead a wide range of possible means of gathering information. We know this intuitively as regards non-technology (a shout is not a phone call), but the point is often lost once a technological device is introduced. (Full disclosure, I advised the author of this paper.)

    2. To the extent that these kinds of technical specifications are all too often ignored by courts, I think it reveals two fundamental problems with judicial reasoning in criminal justice/technology cases. First, it betrays a fundamental discomfort that many lawyers and judges have with technical questions about engineering, software design, science, etc. And second, it underscores the lack of information available to the parties with regard to the actual functioning of such devices, many of which are developed for the exclusive use of law enforcement by private companies that refuse to make available the technical specifications or proprietary technologies that underpin their instruments. Although such issues do and can arise with regard to instruments developed by the government, such concerns are particularly acute as regards tools created by industry, which are strongly sheltered from any scrutiny by their lack of party-status, as well as laws protecting intellectual property and corporate privacy. The inaccessibility of this kind of technical information conflicts with our otherwise strong commitments to transparency and reliability in criminal justice (not to mention due process and confrontation concerns), and yet the need for greater disclosure is all too often overlooked by scholars and the courts. A lawyer may not think to make technical arguments because technical specs aren’t found on Westlaw, but even if the lawyer tries, she will often be shut down by assertions that the information is protected. Yet as policing continues to utilize sophisticated technological tools (whether with regard to location trackers, DNA tests, biometric devices, etc.), courts must be willing to confront questions about disclosure and transparency.

    3. Lastly, small point: I agree with the comments about the benefits of a warrant requirement in enhancing transparency, but would add one additional important point. The high percentage of warrants that are issued upon requests should not be interpreted as a sign that the warrant requirement has little practical effect. Quite the contrary: the steps required to obtain a warrant – both the ministerial tasks (e.g., typing out the affidavit, etc.) and the analytical tasks (e.g., articulating the basis) — create a strong disincentive to seek a warrant except in cases where it will be both almost certain to be granted, and likely to return valuable information. I have no doubt that the warrant requirement prevents a large number of searches from occurring – not because the warrant application is denied, but because it is never sought in the first place.

  • Fabio Arcila, Jr. – 2 Promoted Comments

    The first thing I want to do is set the stage a bit for Jones by briefly explaining its significance. Jones has the potential to be the most important Fourth Amendment decision in decades because it gives the Supreme Court the opportunity to fundamentally grapple with the most important Fourth Amendment decision, Katz v. United States. Katz, which famously embraced privacy as the core Fourth Amendment search protection, is also famously enigmatic. Does Justice Harlan’s two-part search standard (a subjective expectation of privacy, which is objectively reasonable), stated in his concurrence and embraced as the Katz governing standard ever since, accurately capture the majority ruling? Did Katz mean to replace property with privacy, or merely to supplement property with privacy? Katz‘s emphasis on privacy served as a foundation for the later spatial emphasis in Fourth Amendment law, as in California v. Greenwood (no privacy in curbside garbage). But are such spatial distinctions unfaithful to Katz? After all, they can be difficult to reconcile with Katz’s language that “What a person . . . seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.” If the third-party doctrine is correct (see, United States v. Miller and Smith v. Maryland), it would seem that Katz should have lost given that he knowingly exposed his conversation to the telephone company, which could have accessed not just the telephone number he dialed but also the content of his conversation. Thus, though the third-party doctrine grew out of Katz and its move to privacy, there is some tension between the two. To what extent is Katz properly viewed, first and foremost, as a technological surveillance case, as opposed to a routine surveillance case? Jones is important because, no matter how one resolves Katz‘s mysteries, Jones offers an opportunity to both clarify and dramatically reform Fourth Amendment jurisprudence.

    I think it quite likely that the Court will avoid these deeper issues, such as by ruling on very narrow grounds, or resolving the case solely on the seizure issue (which asks whether police “seized” Jones’s car by surreptitiously placing a GPS tracking device on it, without a warrant). But the stakes are very high, in particular given the increasing popularity, and ubiquitous GPS capability, of smartphones. A ruling against Jones means that the next step will certainly be law enforcement more commonly seeking disclosure of an individual’s GPS location data from wireless cellular providers via the third-party doctrine (something that is already occurring).

  • David LeRoy – 4 Promoted Comments

    I am a bit confused here. Police do not need nor do courts require warrants for suveillance of individuals. I fail to see the qualitative difference between the old-fashioned sitting in a car and following someone around, noting where they went and for how long, etc.- like in the old Dragnet series. The GPS devices are simply a high tech means of this old fashioned surveuillance. I can see the warrant requirement if the car is parked in a house’s garage, or even on a private drive way, but is there really a difference between the GPS tracking device and regular, old-fashioned visual surveillance other than the savings to police manpower? It isn’t as if it is recording the private conversations within the car.

    • Fabio Arcila, Jr. – 2 Promoted Comments

      Dave: I responded to your comment in the fourth paragraph of my 10/26 posting, which appears immediately after yours.

  • Fabio Arcila, Jr. – 2 Promoted Comments

    I want to talk about Orin Kerr’s position (here) that the GPS tracking in Jones should not be deemed a Fourth Amendment “search” because the Supreme Court should remain faithful to the inside/outside distinction underlying Knotts and Karo (the beeper cases), as well as his criticism of the mosaic theory (here) that the D.C. Circuit embraced to rule in Jones’s favor. Orin argues that the inside/outside distinction is a useful, easily applied standard, and that no ready alternative is available. He argues (correctly) that the inside/outside distinction is a bedrock Fourth Amendment principle, and thus it should hold sway here so as to avoid difficult line-drawing and provide sufficient clarity to law enforcement (namely, that it is free to engage at will in warrantless GPS tracking in public spaces, subject to possible limitations on installation of GPS devices). As for the mosaic theory, I think it’s fair to characterize his position as being that it is revolutionary and too amorphous and arbitrary, and that we would do better to reject it and instead simply apply the inside/outside distinction.

    Orin’s reasoning sure feels like it sacrifices first principles in favor of judicial simplicity. In saying that, I mean to be purposefully provocative. Of course, a primary question is whether the GPS tracking in Jones violates first principles. But (hat tip to Colbert, whom I paraphrase) it sure feels “truthy” to declare that the Fourth Amendment must protect the public from round-the-clock location tracking surveillance by the state in any public space. (There’s a reason that Orwellian references have recently proliferated in case reports.) Admittedly, Colbert’s actual point is that truthiness is not a legitimacy standard, so further inquiry is required.

    Here’s some: think about the potential for a pervasive surveillance state that flows directly from the United States’s arguments in Jones. The United States claims that it may engage in GPS tracking in public spaces without a warrant or the judicial oversight it provides; at its sole discretion and without probable cause or even any degree of suspicion whatsoever (it argues that it must have ready access to GPS data to establish probable cause); and that it may engage in such surveillance of anyone for as long as it pleases. (Has 10 years of surveillance shown nothing but innocent activity? Well, you never know what year 11 will show.) Implicit in these arguments is that there will be no judicial recourse for such surveillance (after all, there would be no Fourth Amendment violation, and almost certainly no tort except perhaps for trespass, but that is questionable, and in any event damages would still have to be shown and be large enough to justify the expense of a lawsuit).

    Orin argues for application of a clear, historically well-established bright-line rule (the inside/outside distinction) to a never-before-seen context. But rules that worked well in the past might no longer work given changed circumstances, a particular concern when it comes to advancing technologies, with GPS tracking being a prime example. As David LeRoy points out above, police have not needed warrants to engage in physical surveillance; thus, the United States argues that it does not need a warrant for GPS tracking because it simply provides a different technique for engaging in the same surveillance. But GPS tracking is not just different in degree; it is different in kind. Physical surveillance could never achieve the same outcome as GPS tracking for at least three reasons. First, GPS tracking allows surveillance that is so pervasive and detailed that the government would be unable to achieve the same outcome in any other way due to the possibility of detection as well as resource-constraint issues (in terms of both cost and personnel). Second, GPS tracking does not require persistent human involvement, as do physical surveillance and beeper technology. Third, GPS tracking can access historical data from third-party service providers such as wireless carriers and thus can go back in time in a way that physical surveillance cannot (this possibility invokes the third party doctrine and is not at issue in Jones, but as I note in my blog post above is indirectly at stake).

    Though the analytical simplicity Orin prefers is an alluring siren here, it leads us astray. Perhaps critics of my position find Orwellian concerns overly dramatic and misplaced. But it is analytically justified to ask what constitutional framework would avoid that potential outcome. There seem to be none. One of Orin’s critiques of the mosaic theory is that the point at which warrantless GPS tracking in public spaces becomes unconstitutional–when it changes from being brief (and allowed) to prolonged (and disallowed)–is arbitrary. I am not a fan of the mosaic theory, preferring instead the different-in-kind rationale explained in the preceding paragraph. But I will say that the same line-drawing difficulty Orin refers to also exists in defining when “routine” warrantless GPS tracking such as in Jones becomes so pervasive as to legitimately invoke Orwellian concerns. If line-drawing is to be avoided now, as Orin would have it, I see no basis for imposing it later, for the reason that Chief Judge Sentelle so pithily explained when he invoked the inside/outside distinction while dissenting from the denial of an en banc hearing in Jones before the D.C. Circuit: “The reasonable expectation of privacy as to a person’s movements on the highway is…zero. The sum of an infinite number of zero-value parts is also zero.” Thus, if Orin has his way, the resulting lack of Fourth Amendment protection extends right into the Orwellian nightmare. Our constitutional choice is to draw lines now, or not at all. Imposing a warrant requirement for GPS tracking would provide a clear, bright-line rule, which police could easily follow, and which would meaningfully protect the public from this sort of surveillance by regulating police discretion. Orin seems to agree that lines need to drawn (hence his call in his first linked post above for “a new privacy statute…to address both government and private-sector use of GPS surveillance”), but he does not see a basis for the judiciary imposing such lines through Fourth Amendment adjudication. Maybe it’s just me, but it would seem an awfully impotent Fourth Amendment that would not protect us from an Orwellian surveillance state in public spaces. But I don’t think it’s me that’s wrong; I think it’s them. Orin is willing to apply a portion of existing Fourth Amendment jurisprudence though it would offer no protection from an Orwellian outcome, rather than perceiving such a possibility as an indication that our Fourth Amendment jurisprudence is deficient and should be fixed. The Supreme Court has the opportunity to start that project in Jones.

    • Orin Kerr – 4 Promoted Comments

      Fabio, you present the issue as being about first principles versus judicial simplicity, but I don’t think that’s right. Rather, the issue is which set of first principles to follow: (1) the outside/inside distinction that you recognize as the traditional bedrock of Fourth Amendment law, or (2) the principle that we should construe the Fourth Amendment in a way that ensures that the hypothetical you fear does not come to pass.

      One difficulty with adopting the latter principle is that it requires a lot of assumptions for it to be viable. You have to assume that (a) the installation of the device is a not a search or seizure (QP2), (b) legislatures do not have any interest in legislating use of GPS devices, and (c) there is no public objection to the Orwellian practices you describe. If any of those assumptions are wrong, then your Orwellian hypo falls flat. So it seems to me that you have to make the case on (a), (b), and (c) before you can establish that alternate principle (2) as realistic; only then is it really useful to debate whether the Court should adopt principle (1) or principle (2).

Please login or register to participate in the discussion

Term Snapshot