Consumer Federation of California

The fourth amendment isn’t completely dead after all! While this fundamental right to privacy is admittedly in tatters, the Supreme Court ruled last week that police must have a warrant in order to track someone using a GPS device.

The case in question involved police covertly tracking a suspected cocaine dealer’s car using a GPS device for an extended period of time without getting a warrant. The question before the court largely centered on whether the constant, and extended, use of a secret GPS tracking device violated the Fourth Amendment’s protection against unreasonable searches and seizures?

Or, is such use of these devices without a warrant acceptable on the grounds that there is no expectation of privacy when in public places and that such tracking technology merely makes public surveillance easier and more effective?

Clearly, a whole lot was riding on this decision for privacy advocates. Citizens shouldn’t be concerned that trips to a friend’s house, a place of worship, or a therapist’s office can be tracked in real time by the government.

Thankfully, in this case, the court agreed: attaching a GPS device to a car and tracking its movements is a violation of the Fourth Amendment. Unfortunately, the government will likely continue to insist that tracking the location of cell phones is unaffected by this ruling.

As previously laid out in an article in Wired Magazine, there is an important distinction between traditional surveillance and GPS tracking: "Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one’s not visiting any of these places over the course of a month. The sequence of a person’s movements can reveal still more; a single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story."

Interestingly, though not surprising, the Court, while in unanimous agreement that a warrant is necessary, came to that conclusion from very different perspectives.

Certainly, the stand out Justice was Sonia Sotomayor, who went much further than her colleagues on the issue of privacy in the digital age – even making a case for revision of the ‘third-party’ doctrine (i.e. we lose Fourth Amendment protection when we disclose certain information). She wrote, ‘More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.’

On the question of surveillance, she also distanced herself from Antonin Scalia’s narrow property rights argument (i.e. by installing the device police were violating the suspect’s private property), writing ”the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations. Under that rubric, I agree with Justice Alito that, at the very least, ‘longer term GPS monitoring in investigations of most offenses impinges on expectations of privacy.’"

As Julian Sanchez of the CATO institute noted, the ruling was a big victory for privacy advocates and the Fourth Amendment, writing, ‘This is a pretty big deal. Fourth Amendment scholars have been warning for decades’and with increasing alarm’that modern communications technology could turn constitutional privacy protections into an empty formality if we’re regarded as waiving those protections whenever we ‘expose’ information to a third party. It is inherent to the nature of the Internet and mobile telecommunications, after all, that almost everything we do online’and, increasingly, much that we do offline as well’leaves a trace in the vast databases of one corporation or another.

Sotomayor’s concurrence signals a recognition that we need to move beyond what privacy scholar Daniel Solove has called ‘The Secrecy Paradigm,’ which assumes that whatever is not totally secret (or very nearly so) is effectively ‘public.’ In other words, if your Internet provider has a record of every Web site you visit, there’s no invasion of privacy when the government decides to have a look at the list. At least one Justice, evidently, recognizes that this is an indefensible inference’and one hopes she’s not alone.’

Does Sotomayor’s case against the third party doctrine have any significance for privacy advocates moving  forward? Timothy B. Lee of ArsTechnica says yes, writing, ‘Sotomayor’s discussion of the third-party doctrine has no legal significance, since she was the only one to sign onto her concurrence. But it could prove to have greater significance in the long run. The existence of at least one justice who is skeptical of the doctrine will inspire privacy advocates to raise objections to the idea in future cases. And one of those cases is likely to reach the high court at some point in the future.’