Sonia Sotomayor's Heartening Defense of Privacy

Supreme Court Justice Sonia Sotomayor filed an interesting and heartening concurring opinion in U.S. v. Jones, yesterday's decision concluding that tracking a suspect's car by attaching a GPS device to it amounts to a "search" under the Fourth Amendment. Although Sotomayor joined the majority opinion by Antonin Scalia, she clearly was concerned about the limits of his rationale, which focused on the trespass involved in attaching the transmitter and therefore did not address surveillance technologies that do not require physical contact with the target's property (citations omitted):

Physical intrusion is now unnecessary to many forms of surveillance. With increasing regularity, the Government will be capable of duplicating the monitoring undertaken in this case by enlisting factory- or owner-installed vehicle tracking devices or GPS-enabled smartphones. In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance.

In such cases, Sotomayor says, the "reasonable expectation of privacy" test used in Samuel Alito's concurring opinion (which was joined by three other justices) would apply, and she suggests that extended tracking of people's movements, regardless of the specific means used, would constitute a "search" under the Fourth Amendment (citations omitted):

GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: "limited police resources and community hostility."

Awareness that the Government may be watching chills associational and expressive freedoms. And the Government's unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring--by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track--may "alter the relationship between citizen and government in a way that is inimical to democratic society."

I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one's public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on. I do not regard as dispositive the fact that the Government might obtain the fruits of GPS monitoring through lawful conventional surveillance techniques. I would also consider the appropriateness of entrusting to the Executive, in the absence of any oversight from a coordinate branch, a tool so amenable to misuse, especially in light of the Fourth Amendment's goal to curb arbitrary exercises of police power to and prevent "a too permeating police surveillance."

Judging from this discussion, there is already a fifth vote on the Court for the position that warrantless GPS tracking violates the Fourth Amendment even when it does not involve physical intrusion. But Sotomayor goes even further, questioning "the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties," which has been the Court's position since the 1970s. Sotomayor suggests "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," such as the phone numbers and email addresses with which the communicate, the websites they visit, and the online purchases they make:

I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Sotomayor is right to question that assumption. It seems to me this kind of information, although held by third parties, is the modern equivalent of the "papers" specifically protected by the Fourth Amendment.

Look for more on U.S. v. Jones in my column tomorrow.

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  • ||

    For the life of me, I can't understand why they wouldn't just get a warrant.

    Just kidding.

  • ||

    I shat bricks. Did not expect.

  • o3||

    wise latina at work

  • ||

    Yeah, well, too bad she's not a fan of the whole free speech thing, as her vote in Citizens United shows. And how does she feel about privacy when it comes to economic transactions?

  • White firefighters||

    Wow, she got something right. Hope it isn't the last time.

  • Neu Mejican||

    Yeah, well, too bad she's not a fan of the whole free speech thing, as her vote in Citizens United shows.

    Not sure that follows. I would have to see you make the case in detail. There are many reasons to oppose the majority decision that don't involve hating free speech.

    And how does she feel about privacy when it comes to economic transactions?

    a wealth of detail about her familial, political, professional, religious, and sexual associations

    It seems to be implied in her opinion above. Why do you assume she would find an important distinction?

  • ||

    Once it was clear that McCain-Feingold permitted book-banning, the free speech implications were undeniable.

    I assume she would make the typical left/liberal assumption that once money is involved, the government can jump in with both feet.

  • Neu Mejican||

    Again,

    Her reasoning for not supporting the majority decision may involve things other than the free speech implications of the law. You would need to make that case in detail before I buy your claim.

  • ||

    I really, really hope she turns out to be a civil liberties bulldog. That would be awesome and we could certainly use it about now.

  • Gojira||

    Why do you wish she would turn into a civil-liberties advocate with extreme trouble breathing and dealing with heat, with many congenital genetic defects and illnesses? That's just cruel.

  • Colonel_Angus||

    Man has engineered some truly cruel breeds of dog, which are often misdescribed as "cute". We are God.

  • Tonio||

    Jim, have I ever mentioned that you're a punk?

  • Gojira||

    Hey, I resemble that remark!

  • killazontherun||

    Very surprising development. A well thought out opinion from someone I assumed was picked for being an executive branch supremacist flunky like every other judge of the past fifteen years. I hope you are right, however, she got Citizens United wrong so it is hard to see where an intellectually consistent framework is taking shape.

  • Gojira||

    Eh, I guess when she's right, she's really right. That goes beyond anything I would expect from a Supreme Court God-King Justice.

  • beats me||

    "yesterday's decision requiring a warrant"

    No. Stop saying that. Not true.

    http://volokh.com/2012/01/23/w.....-not-hold/

  • ||

    Technically, true. There are ways to conduct a "search" without a warrant. However, I'm having a hard time seeing how any of those would apply to attaching a GPS to someone's car.

  • Rev. Blue Moon ||

    Seriously, hair-splitting is one of the Legal Profession's hoary habits, but how many "searches" can the Government conduct without a warrant? It isn't many..I cannot even come up with one of off the top of my head. If you are talking about "exigent circumstances", then see RC's point above.

  • ||

    Probable cause, administrative search (ie border crossing, airport checkin), etc.

    As RC said, it's hard to see how GPS monitoring would arise from either of those.

  • rather ||

    And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: "limited police resources and community hostility."

    It must de decided on a person's individual privacy, not community standards, nor police resources.

    Do most people even know that data is collected from anything electronic?

  • yonemoto||

    I disagree with sotomayor here. If you want to keep your third party shit private, you gotta keep that in your contract, or use a company that has the balls to stand up to the gov't.

  • yonemoto||

    in other words, sotomayor's opinion is basically an excuse to use gov't to tell private enterprise how to conduct their business. If private enterprise wants to cave in to law enforcement, that's their business.

  • jasno||

    Good point, I think... but on the other hand I think it would be fine if the default position was that certain classes of information stored by third parties are *by default* private unless the contract states otherwise.

  • ||

    The warrant provision should stick whether you serve it on Verizon or the suspect himself. Just like with phone records. "If you don't want your phone tapped don't use AT&T" is similar argument regarding third parties.

    Of course, with warrantless wiretapping (with Verizon and ATT's helping whether they want to or not) at this point you wonder what 'wiretapping' constitutes in such circumstance.

    But it is good this chick just suprised the shit out of me by not just expressing worry regarding 4th amendment encroachment, but an actual honest-to-God awareness of the way these technologies work and how they're distributed in our society.

    Where's Hillary Clinton tapping (one key at a time) an email, waiting for the wrong button to blow the PC up in her face? Joe Biden staring blankly at an Atari 2600 joystick - before going on a crusade against the intergoogle? This is the government I pay for, where'd it go!? I DEMAND ANSWERS!

  • yonemoto||

    No. It's verizon's property. They can do what they want with it. They can refuse to hand it over without a warrant, but if the government asks politely, they can also voluntarily turn it over without a warrant, too. What the government cannot do is forcibly extract the information without a warrant.

  • yonemoto||

    Here's a good example. Let's say hypothetically, you had a rental property that was being rented by diplomats from the nation of Mujikistan, which may or may not have had citizens who commit real acts of terrorism.

    The FBI comes to you, a libertarian, and asks politely, if they can wiretap your rental property.

    I would say, fuck yes. You don't need a warrant. They're diplomats, agents of a state, so fuck them. They know what they are getting into being diplomats over here (and getting diplomatic immunity).

    I don't consider myself any less of a libertarian for doing so.

  • yonemoto||

    *if it were a Mujikistani private citizen, I would ask for a warrant.

  • jasno||

    Wouldn't a real libertarian tell the government to fuck off, tap the phones himself, and shoot the fuckers in the cranium if they were indeed terrorists?

  • Neu Mejican||

    No. It's verizon's property.

    Is it? You sound so confident. In the case of a wire tap, Verizon can say, yes, you have access to our hardware, but that is not what the search is looking for. It is looking for the information in the data streaming through that hardware. Saying that they own the conversation you are having with Grandma hardly passes a face validity test.

  • Colonel_Angus||

    If the information is held by private parties (cellular service provider and subscriber don't want to release it), a warrant should be required to access the information. If the information is not held privately (subscriber contractually consents to provider releasing information, provider okay with releasing it), then no warrant.

  • yonemoto||

    I never signed a contract consenting to public release of information on Reason Blog.

  • mad libertarian guy||

    The default should be as maximum privacy unless an individual voluntarily authorizes the government to access said information, or they obtain a warrant.

    It seems to me to be the only way to avoid needing to be a lawyer in order to parse wordy contracts and EULAs is to have privacy be the default position all of the time.

    As with any information in my home, get permission, a warrant, or pound sand.

  • yonemoto||

    yeah, but it's not in your home, it's on Verizon's servers. What if verizon gives permission.

  • mad libertarian guy||

    Treat it the same as any information I might store in a safe deposit box. Cops need warrants even though that stuff is in the banks vaults and not my home.

  • Rev. Blue Moon ||

    I am going to concur with mlg here.

  • Max||

    But are Ron Paul's eyebrows fake?

  • yonemoto||

    I believe that's spelled Pual

  • Rouan PaOul||

    For prez

  • ||

    Incidentally, Scalia's opinion specifically didn't foreclose the reasonable expectation of privacy argument, just said that it wasn't necessary to decide this. That presumably made it easier to get a majority.

  • killazontherun||

    I assumed the same as well about his rationality in not being more broadly applied. Tends to be his MO, to assert no more than is necessary for the particular circumstances of a ruling.

  • mad libertarian guy||

    One could also note that he failed to handcuff the government any more than he absolutely needed to with this very thin decision.

  • Liberty||

    ... but don't worry, we'll still hate her when Team Red tells us too.

  • mad libertarian guy||

    I couldn't give a shit about Team RED, but it's not unfair to say that I'll hate her when she makes a decision that is obviously anti-liberty. Which she is bound to do at some point.

  • IceTrey||

    What I find so disappointing about this whole thing is that there are Americans at the street level who are willing to carry out such operations. I guess every totalitarian regime needs it's brownshirts. Where will the boots used to stomp us down come from, but from among us.

  • ||

    And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: "limited police resources and community hostility."

    Oh come on. She not only implicitly assumes a priori that GPS monitoring is abusive, but then goes on to make the argument that any technology that makes police work easier, more efficient, and less dangerous violates privacy. I suppose she thinks we should never have allowed police to drive in cars, because it made it cheaper to patrol a larger area and made police less vulnerable to attack than they were walking a beat.

    A total load of crap, but you guys will lap it up because it suits your preconceived positions. I know how it works.

  • ||

    nice hypersensitive overreaction.

    "constrain abusive law enforcement" does not mean "constrain law enforcement because they are abusive", implicitly or otherwise.

    somebody was just itchin to get all lathered up about this one, eh?

  • RoUan PuOal||

    Obombster must be ticked about this.

  • ||

    Good article, Jacob. As a lawyer, I appreciate both the analysis and the "citations omitted" references.

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