on Oct 25, 2011 at 11:01 am
On November 8, the Court will hear argument in United States v. Jones, which asks whether the government’s use of a GPS device to track the movements of a car constitutes a “search and seizure” under the Fourth Amendment.
The subject is one that has long intrigued academics. George Washington University law professor Orin Kerr, also a contributor to this blog, has devoted much of his career to writing about the implications of new technology on Fourth Amendment doctrine. His Yale Law Journal article Fourth Amendment Seizures of Computer Data was cited by respondent Antoine Jones to support the argument that gathering GPS data from a car’s movements constitutes a “seizure.” In a forthcoming article, Kerr argues that the Court’s nearly incomprehensible Fourth Amendment jurisprudence can best be understood as an attempt to maintain equilibrium in the face of changing technologies and social practices. When such new developments expand government power, the Court extends Fourth Amendment protections; when they undermine government power, the Court will limit the Fourth Amendment’s scope. It will be interesting to see how Kerr’s equilibrium thesis plays out in Jones. (Professor Kerr has already posted his analysis of the case on this blog, which can be found here.)
Professor Kerr is not the only academic writing in this area. His colleague at George Washington, Daniel Solove, has written extensively on privacy protections in a digital age, and his work is also cited in Jones’s brief. And Professors Bennett Gershman, Lenese Herbert, and Renee Hutchins have all published articles explicitly addressing the Fourth Amendment’s application to GPS surveillance.