The Supreme Court Brings the Fourth Amendment into the 21st Century

This week, the Supreme Court held, in United States v. Jones, that police violated the Constitution by using a global position system (GPS) device to track a suspect’s movements. In addition, the Court indicated that it may bring the Fourth Amendment prohibition of unreasonable searches and seizures into the modern era: though the Founders could not have predicted today’s technology, the rights with which all Americans are endowed are timeless.

This decision was an important move to protect the basic rights of all Americans, and the Court’s conclusion that the use of a GPS tracking device constitutes a search and as such requires a warrant to be used by law enforcement is laudable. As Justice Scalia observed, “It is important to be clear about what occurred in this case. The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”

However, while the majority rightly observed that the placing of the device constituted a search, the opinion omits a significant aspect vital to the protection of our right to privacy. As Justice Sotomayor observed in her concurring opinion, “the Fourth Amendment is not concerned only with trespassory intrusions on property…Rather, even in the absence of a trespass, ‘a…search occurs when the government violates a…[reasonable] expectation of privacy.’”

As I’ve explained previously in discussing this same issue:

Whether I am coming from Shabbat services, or going a friend’s house — whether I spend an hour, or only moments, at work or in my home – these are fundamentally very personal aspects of my life, and, as such, they are outside of the realm of legitimate government reach without a warrant. When we consider that tracking an individual’s movements, especially for an extended period of time, reveals the most intimate details of his or her life, we see that the issue is not one of whether we have an expectation of privacy while we walk from place to place. Rather, it is a question of whether we have a right to keep our daily routines, our memberships, and our relationships as private as we would like.

I’m not the only person concerned that the Jones decision may not be broad enough. Rebecca Rosen of The Atlantic asked, “So it’s possible that attaching something to a car is unconstitutional, but tracking their every move — as long as you do not technically trespass while installing the device — is just fine?” As I mentioned above and before: by following someone everywhere they go, we learn not just about their origins and destinations, but fundamental aspects of who they are, their secrets, and what they believe. Is this covered by a Fourth Amendment right to privacy? The Court appears not to answer this question – we’ll have to wait for another case to find out. For now, however, I’ll take what at least seems like a victory.