January 23, 2012

Privacy 2.0: Supreme Court wrestles with techno-surveillance

By Brian T. Hodges Senior Attorney

Earlier today, the U.S. Supreme Court issued its hotly anticipated decision in U.S. v. Jones, which raised many “Big Brother” questions about how far the government is permitted to go when using new technologies to monitor its citizens. The actual issue presented was whether a police department violated the Fourth Amendment’s prohibition against warrantless searches when it affixed a GPS transmitter on to a suspect’s car and then used it to monitor the suspect’s every move for the next four weeks. The Court unanimously held that the police had violated the Constitution. But the Court split on the larger, looming question.

Traditionally, courts have drawn the line between legal and unconstitutional searches by determining whether the person had a “reasonable expectation of privacy.” This distinction, however, may be meaningless to a world in which satellites can zero in on a house (or person), cameras record faces at a crowded stadium or busy intersection, transponders report whenever a vehicle passes a checkpoint, and cell phones can instantly advise of a person’s every movement. So, where will we draw the line?

The majority opinion, authored by Justice Scalia, offered a glimpse at how the Court may resolve future techno-surveillance cases by focusing on the nature of the government action, rather than asking whether the individual’s expectations of privacy were reasonable. “The Government physically occupied private property for the purpose of obtaining information” when it attached a GPS device to a private vehicle and used it to gather information. This, Justice Scalia concluded, constituted a search that the government could not conduct without a valid warrant. There was no need for further inquiry.

In a concurring opinion, Justice Alito and three other Justices, advocated adapting the “reasonable expectation of privacy” inquiry to respond to “Dramatic technological change [that] may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes” toward privacy. Wow! Talk about future shock! Even as an avid reader of science fiction, I cannot imagine how to craft such a legal standard.

The concurrence, however, suggests that the court may want to stay out of this fray to let it play out on its own for a while. After all, the Fourth Amendment question may become moot as we, as a society, voluntarily trade away our expectations of privacy for more convenience:

New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.  And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.

Or, the opinion notes, if enough people are outraged by the burgeoning surveillance society, legislature could be roped into adopting laws restricting the use of new technologies for warrantless monitoring.

This case raises an even larger question: will the Court allow technological innovations to erode our fundamental rights?

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