GPS Monitoring Device Leads the Supreme Court to a Crossroads in Privacy Law

Transcription

1 GPS Monitoring Device Leads the Supreme Court to a Crossroads in Privacy Law SHAUN B. SPENCER * INTRODUCTION T he case of United States v. Jones 1 led the United States Supreme Court to a crossroads in its Fourth Amendment jurisprudence. The Jones Court had to decide whether law enforcement s use of a GPS device to monitor a suspect s vehicle around the clock for a month constituted a search within the meaning of the Fourth Amendment. The case presented a potential collision between two different approaches to identifying Fourth Amendment searches. 2 The first is a location- driven approach in which government intrusions into private locations constitute Fourth Amendment searches, while government observations from outside private locations do not. 3 In Katz v. United States, 4 the Court rejected a strictly location- driven approach 5 and instead reasoned that the Fourth Amendment protects people, not places. 6 Although the Court has nominally applied the Katz reasonable expectations test for the last four decades, the Court s post- Katz surveillance cases have largely returned to the location- driven approach. Had the Court continued this location- driven approach, it would have held that GPS monitoring in public spaces was not a Fourth Amendment search, on the theory that people have no expectation of privacy while in a public space. However, one can read the Court s post- Katz decisions to * Assistant Professor, University of Massachusetts School of Law Dartmouth. 1 United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2011), cert. granted sub nom. United States v. Jones, 131 S. Ct (2011). 2 See Jones, 131 S. Ct. at See Olmstead v. United States, 277 U.S. 438, 464, 466 (1928) U.S. 347 (1967). 5 See id. at at

2 46 New England Law Review v support a second approach, a situation- based approach, that is better suited to deal with changing technologies and is more faithful to the reasonable expectations test that the Court purports to apply. In a fractured decision, a majority in Jones adopted the situation- based - term use of GPS monitoring movements over time along public roads. 7 I. Background: United States v. Jones In 2005, a law enforcement agent placed a GPS monitoring device on a Jeep Grand Cherokee driven by Antoine Jones while the Jeep was parked in a public lot in Maryland. 8 The device transmitted the Jeep s location data over the next four weeks to a remote computer. 9 The government alleged that the location data demonstrated a pattern in which Jones frequented a suspected stash house for illegal drugs. 10 The government never found any drugs or drug paraphernalia in Jones possession, but it relied in large part on the GPS monitoring data to secure a conviction for conspiracy to distribute five milligrams or more of cocaine. 11 Jones appealed the conviction, and the United States Court of Appeals for the District of Columbia Circuit held that using the GPS monitoring device violated Jones Fourth Amendment protection against unreasonable search and seizure. 12 The government appealed to the Supreme Court, which granted certiorari and heard oral argument on November 8, II. Origins of the Location- Based Approach: Olmstead and the Trespass Doctrine The location- based approach to government surveillance finds it roots in the trespass doctrine of Olmstead v. United States. 14 In Olmstead, the Court held that warrantless tapping of the defendant s telephone lines did not violate the Fourth Amendment because the government tapped the telephone lines from outside the defendant s home and therefore did not 7 See United States v. Jones, No , 2012 WL , at *3 (U.S. Jan. 23, 2012). at *3 n.2. 8 at * Brief for Respondent at 5-6, United States v. Jones, No (U.S. Sept. 26, 2011); see also United States v. Maynard, 615 F.3d 544, 562 n.* (D.C. Cir. 2010), cert. granted sub nom. United States v. Jones, 131 S. Ct (2011). 11 Brief for Respondent, supra note 10; see also Maynard, 615 F.3d at 562 n.*, Maynard, 615 F.3d at 555, See Jones, 2012 WL , at * U.S. 438 (1928).

3 2012 Crossroads in Privacy Law 47 physically trespass into the home. 15 The Court subsequently relied on this trespass doctrine to evaluate the constitutionality of eavesdropping on suspects conversations. In Goldman v. United States, 16 the Court held that placing a listening device in an office adjacent to the defendant s office did not violate the Fourth Amendment. 17 The device, a detectaphone, was placed on the opposite side of the defendant s office wall. 18 The device was so sensitive that it amplified the sound waves emanating from the defendant s office. 19 The Court held that using the device did not constitute a trespass into the defendant s office, and therefore the case was indistinguishable from Olmstead. 20 In contrast, the Court held in Silverman v. United States 21 that using a spike microphone that intruded slightly into the defendant s row house violated the Fourth Amendment. 22 The surveillance device consisted of a foot- long metal spike attached to a microphone. 23 The spike was driven through the baseboard of an adjacent row house until it was touching the metal heating duct in the defendant s row house. 24 That turned the heating duct into a sound conductor through which law enforcement agents could hear the conversations in the defendant s row house. 25 The Court distinguished the case from Goldman because the spike microphone physically trespassed into the defendant s home. 26 In these cases, the Court s approach was a mechanical one based purely on location. If government surveillance physically infringed even marginally on a private location, such as a home or office, then the surveillance violated the Fourth Amendment unless it was authorized by a warrant. On the other hand, if the government surveillance did not physically intrude on a private location, then there was no Fourth Amendment violation no matter what surveillance technique the government employed. 15 See id. at 464, U.S. 129 (1942). 17 at at at U.S. 505 (1961). 22 See id. at 506, at at at See id. at

4 48 New England Law Review v III. Departure from the Location- Based Approach In Katz v. United States, 27 the Court rejected the Olmstead trespass doctrine and reasoned instead that the Fourth Amendment protects people, not places. 28 In Katz, law enforcement agents attached an electronic listening and recording device to the outside of a public telephone booth and used the device to record the defendant s telephone calls. 29 The government later used those calls to convict him of transmitting wagering information. 30 The Court of Appeals agreed with the government s argument that, as in Olmstead, there was no Fourth Amendment search because there was no physical intrusion into the telephone booth. 31 After granting certiorari, the Supreme Court rejected Olmstead s purely location- based approach and replaced it with a more flexible approach to determine whether government action constituted a Fourth Amendment search. 32 The Court asked whether (1) the defendant had a subjective expectation of privacy under the circumstances, and (2) whether society was prepared to recognize that expectation of privacy as reasonable. 33 The Court held that the government s use of the listening device constituted a Fourth Amendment search because, when people enter a telephone booth and close the door, they are entitled to assume that their words will not be broadcast to the entire world. 34 This reasonable expectations test disclaims reliance on whether the person was in a public or private location. What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection.... But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected. 35 IV. Reemergence of the Location- Based Approach In subsequent cases, however, the Court revived the location- based approach by using the location of the defendant or the surveillance device as a proxy to determine whether the defendant enjoyed a reasonable U.S. 347 (1967). 28 at 351, at at See id. at Katz, 389 U.S. at 361 (Harlan, J., concurring). Although this test originally appeared in urrence, the Court adopted the test in Smith v. Maryland, 442 U.S. 735, (1979). 34 Katz, 389 U.S. at at (citations omitted).

5 2012 Crossroads in Privacy Law 49 expectation of privacy. In United States v. Knotts, 36 for example, the Court held that the law enforcement agents use of a beeper to track the defendant s vehicle did not constitute a Fourth Amendment search. 37 In Knotts, law enforcement agents placed a beeper in a container of chloroform that the defendants subsequently purchased and used the beeper to track the container along public roads until it arrived at one defendant s residence. 38 Although the Court nominally applied the reasonable expectation of privacy test, the Court relied on the fact that the beeper tracked the defendant s travels in a public location. 39 The Court reasoned that [a] person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another. 40 The Court observed that law enforcement agents could have made the same observations with no Fourth Amendment concerns by posting agents along his route or following the vehicle. 41 In contrast, in United States v. Karo, 42 the Court held that using a beeper to monitor movement inside of the defendant s home constituted a Fourth Amendment search. 43 In Karo, law enforcement agents installed a beeper in a can of ether that the defendants later purchased from a government informant. 44 They used the beeper to track the can s movements in a variety of places, including inside one defendant s home. 45 The Court distinguished Knotts because the beeper in Karo revealed information that [law enforcement] could not have obtained by observation from outside the curtilage of the house. 46 Relying again on the distinction between private and public locations, the Court reasoned that private residences are places in which the individual normally expects privacy free of governmental intrusion not authorized by a warrant, and that expectation is plainly one that society is prepared to recognize as justifiable. 47 The Court took a similarly location- based approach in other cases nominally applying the reasonable expectations test. For example, in U.S. 276 (1983). 37 at at at See id. at U.S. 705 (1984). 43 See id. at at at at at 714.

6 50 New England Law Review v California v. Greenwood, 48 law enforcement agents searched garbage that the defendant left by the side of a public street for trash collection. 49 The Court reasoned that the defendant had no reasonable expectation of privacy because placing the garbage on a public street exposed the garbage to the public. 50 The location- based approach has driven the Court s aerial surveillance cases as well. In California v. Ciraolo, 51 the Court held that aerial observation of the defendant s backyard from an altitude of 1000 feet did not constitute a Fourth Amendment search. 52 The Court reasoned that the flyover did not violate a reasonable expectation of privacy because any member of the public flying in this airspace who glanced down could have seen everything that these officers observed. 53 Similarly, in Dow Chemical Co. v. United States, 54 the Court held that EPA officials did not violate the Fourth Amendment by using commercial aerial photography equipment to photograph the defendant s property from altitudes of 1200 to 12,000 feet. 55 The Court reasoned that the use of generally available photography equipment was no different from the naked- eye observations in Ciraolo and that the defendant therefore had no reasonable expectation of privacy against observations conducted from a public location the airspace above its property. 56 In all of these cases, despite Katz s people, not places admonition, the Court based its analysis on the places where the surveillance took place. Although the end result in these cases may be correct, the categorical nature of the location- based approach is too blunt an instrument to capture the varying degrees of privacy that people expect in particular circumstances. That is precisely why Katz disclaimed reliance on location and focused on people, not places. The oversimplified nature of the location- based approach becomes increasingly significant as emerging surveillance technologies erase the line between private and public locations U.S. 35 (1988). 49 at U.S. 207 (1986). 52 at at U.S. 227 (1986). 55 at

7 2012 Crossroads in Privacy Law 51 V. Support for a Situation- Based Approach to Determining Reasonable Expectations of Privacy Despite the prevalence of the Court s location- based approach to evaluating surveillance techniques, the Court s Fourth Amendment jurisprudence also supports a more flexible, situation- based approach. A prime example of this approach lies in the Court s treatment of oral communications. The Court s cases regulating surveillance of oral communications examine what expectations of privacy flow from the defendant s entire situation, rather than his mere geographic location. This situation- based approach allows the Court to recognize the extent to which privacy is a matter of degree rather than an all- or- nothing proposition. For example, when we speak to a third person who turns out to be a government informant or agent wearing a concealed transmitter 57 or a tape recorder, 58 the government s surveillance does not violate a reasonable expectation of privacy. In such cases, the Court reasons we assume the risk that the person to whom we speak will breach our trust and share our message with others. 59 Katz tells us, however, that when we speak to a third person on the telephone and the government intercepts our conversation before it reaches our intended audience, that interception violates our reasonable expectation of privacy. 60 If the Katz Court had applied a purely location- based approach, it would have held that the defendant forfeited any expectation of privacy by transmitting his voice outside of the private location in the phone booth. That was the approach the Court took decades earlier in Olmstead. That approach would also have been consistent with the assumption of the risk rationale in On Lee and Lopez. 61 Yet the Court in Katz recognized that exposing information to one member of the public is not the same as exposing information to all members of the public. When we share a secret with one person, we undoubtedly assume the risk that the person may share our secret with others. 62 But we do not assume the risk that others will overhear our conversation and decide for themselves whether to share it. In addition, the Knotts Court itself signaled a willingness to consider a situation- based approach to dealing with pervasive surveillance. In 57 United States v. White, 401 U.S. 745, 753 (1971); On Lee v. United States, 343 U.S. 747, (1952). 58 Lopez v. United States, 373 U.S. 427, (1963). 59 See White, 401 U.S. at 749, 752; Lopez, 373 U.S. at ; On Lee, 343 U.S. at Katz v. United States, 389 U.S. 347, 352 (1967). 61 See Lopez, 373 U.S. at ; On Lee, 343 U.S. at See White, 401 U.S. at 749, 752; Lopez, 373 U.S. at ; On Lee, 343 U.S. at

8 52 New England Law Review v Knotts, the defendant argued that finding no Fourth Amendment violation would authorize the government to engage in prolonged, twenty- four hour surveillance. 63 The Court rejected this argument, reasoning that if such dragnet type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. 64 More recently, in Kyllo v. United States, the Court rejected a purely location- based approach for dealing with emerging surveillance technologies. 65 In Kyllo, federal drug enforcement agents suspected that the defendant was growing marijuana in his home. 66 Because indoor marijuana growth typically requires high- intensity lamps, the agents used a thermal imaging device to scan the exterior of the defendant s home. 67 The thermal imaging device revealed evidence of unusual heat emanating from the garage roof and side wall. 68 If the Court had taken a purely location- based approach, it would have held that the defendant had no reasonable expectation of privacy in the heat waves radiating out of his home because they were exposed to the public. Indeed, the dissent urged precisely that rationale. 69 The majority, however, held that use of the thermal imaging device constituted a Fourth Amendment search. 70 The Court based this holding on the fact that the thermal imaging device was not in general public use and that it allowed law enforcement agents to explore details of the home that would previously have been unknowable without physical intrusion. 71 The Court rejected the government s argument that the thermal imaging device could not be a search because it merely picked up heat radiating outside the house. 72 The Court reasoned that it had rejected such a mechanical approach in Katz and that returning to such a mechanical U.S. 276, 283 (1983). 64 at 284. Other courts have emphasized the limited nature of the holding in Knotts. See, e.g., United States v. Butts, in Knotts, we pretermit any ruling on worst- case situations that may involve persistent, People v. Weaver, 909 N.E.2d 1183, (N.Y. 2009) (acknowledging Knotts another day the question of whether a Fourth Amendment issue would be posed if twenty- marks omitted)) U.S. 27, 40 (2001). 66 at at at 41 (Stevens, J., dissenting). 70 at 40 (majority opinion). 71 Kyllo, 533 U.S. at at 35.

9 2012 Crossroads in Privacy Law 53 approach would leave individuals unprotected against advancing surveillance technologies that may easily see through walls without any physical entry into the home. 73 One could read Kyllo as based primarily on the Fourth Amendment s core purpose of protecting the home against governmental intrusion. Yet to reach its holding, the Court took into account how people s expectations about what information they expose to the public vary according to their particular situation. The Court recognized that, although the heat was literally exposed to the public, people do not expect the temperature of their home to be a matter of public knowledge. This recognition of varying degrees of privacy harkens back to Katz, where the Court rejected the government s categorical claim that the defendant lacked any expectation of privacy because he was visible to the public from the phone booth. 74 The Court recognized the need to take into account differing degrees of privacy, and explained that what he sought to exclude when he entered the booth was not the intruding eye it was the uninvited ear. 75 VI. Application of the Location- Based and Situation- Based Approaches to GPS Monitoring If the Court simply used the location- based approach to determine whether GPS monitoring is a Fourth Amendment search, then Jones would have been an easy case to decide. Indeed, at oral argument, many of the Justices emphasized the Court s past decisions concerning surveillance on movements in public where people enjoy no reasonable expectation of privacy. 76 Adherence to the location- based approach would mean that Katz v. United States, 389 U.S. 347, 352 (1962) See, e.g., Transcript of Oral Argument at 11:10-15, United States v. Jones, 131 S. Ct (2011) (No ), available at transcripts/ pdf [herein Alito, J.) (asking whether the Court should that people expose to the public is id. at 43:1-5 (Alito, J.) ( difference in terms of one'ʹs privacy whether you'ʹre followed by a police officer for 12 hours id. at 38:18-21 (Sotomayor, J.) ( from place to place? And if tha id. at 33:21-24 (Kennedy, J.) ( this route and watch this person or we can have a device with a warrant. What difference does it mak id. at 34:3-7 (Kennedy, J.) ( they would have had if they had 30 deputies staked out along the route. That'ʹs all. They'ʹd get id. at 39:22-25 (Scalia, J.) ( cases have said that there is no search when... you are in public and where everything that you do is open to... the view of people. That'ʹs the hard question in the case... id. at 40:6-17 (Scalia, J.) (noting that the police could have conducted round- the- clock surveillance of the

10 54 New England Law Review v the Fourth Amendment cannot limit the government s use of GPS devices to monitor vehicles in public, because there is no expectation of privacy in one s travels on public roads. That is precisely how some lower courts have decided the GPS monitoring issue. 77 However, the pervasive potential of GPS monitoring raises significantly different issues than traditional methods of surveillance on public roads. First, GPS monitoring can be perpetual, whereas the resource- intensive nature of human surveillance limits how long surveillance can be undertaken. As Justice Sotomayor observed during the oral argument in Jones, GPS technology today is limited only by the cost of the instrument, which frankly right now is so small that it wouldn t take that much of a budget, local budget, to place a GPS on every car in the nation. 78 In contrast, given the cost and difficulty of constant human surveillance, round- the- clock surveillance without GPS monitoring is practically impossible in the vast majority of cases. 79 The D.C. Circuit relied on this practical limitation to distinguish round- the- clock GPS monitoring for a month from the tracking of a single trip in Knotts. 80 The court reasoned that the whole of a person s movements... is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, it is essentially nil. 81 privacy, and asking why there should be any expectation of privacy in this case). 77 E.g., United States v. Marquez, 605 F.3d 604, 610 (8th Cir. 2010) (holding no warrant required for GPS tracking devices installed in a public place); United States v. Pineda Moreno, 591 F.3d 1212, 1215 (9th Cir. 2010) (holding no violation when GPS was affixed while vehicle was parked on a public street and parking lot); United States v. Garcia, 474 F.3d 994, 997 (7th Cir. 2007) (comparing GPS tracking to surveillance cameras and satellite imaging, and holding no Fourth Amendment violation based on this comparison); United States v. McIver, 186 F.3d 1119, (9th Cir. 1999) (holding that installation of GPS device on undercarriage of vehicle in driveway was not search where driveway was not within curtilage); United States v. Williams, 650 F. Supp. 2d 633, 668 (W.D. Ky. 2009) (holding no search warrant required where GPS device was installed on exterior of vehicle and vehicle had been installed or monitored while vehicle was located on private property); United States v. Jones, 451 F. Supp. 2d 71, 88 (D.D.C. 2006) (tracking GPS device on public roadway was not search, but GPS data received while vehicle was parked in garage was obtained as result of search); United States v. Moran, 349 F. Supp. 2d 425, 467 (N.D.N.Y. 2005) (tracking GPS device on highway was not search where officers could have conducted surveillance by following vehicle on public road). Similarly, a few state courts have concluded that use of a GPS device on a public way is not a search under the Fourth Amendment. E.g., Stone v. State, 941 A.2d 1238, (Md. Ct. Spec. App. 2008); State v. Sveum, 769 N.W.2d 53, 59 (Wis. Ct. App. 2009). 78 Transcript, supra note 76, at 25: United States v. Maynard, 615 F.3d 544, 565 & n.*. 80 See id. 81 at 560.

11 2012 Crossroads in Privacy Law 55 Second, monitoring the frequency of a citizen s visits to particular locations over an extended period paints a more vivid picture than observing one visit. Knowing that someone visited a church once is different from knowing whether they go to church twice a year or every week. The D.C. Circuit reasoned that [p]rolonged surveillance reveals types of information not revealed by short- term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. 82 Finally, GPS monitoring creates the potential for cross- referencing location data across a vast number of citizens. A database of GPS monitoring records would allow law enforcement to ask and answer a host of questions, some of which are more unsettling than others. Who was near a crime scene in the moments before the crime? Who regularly attends a particular church, synagogue, or mosque? Who attended a lecture by a radical activist? Who was present at a peaceful protest? Does a particular public official have a pattern of overnight hotel stays with someone other than his or her spouse? When data is gathered systematically across an entire group and over an extended time, the increase in the revelatory value of that data is not linear, it is exponential. Commentators have referred to this feature of pervasive data collection as the aggregation effect or mosaic theory. 83 For these reasons, GPS monitoring is not merely different in degree from the short- term surveillance in Knotts; it is different in kind. In Knotts, the Court was presented with beeper- assisted tracking of a single trip. Jones, in contrast, involved round- the- clock surveillance for a month, and GPS monitoring offers the potential to conduct such surveillance on a vast number of individuals. Several lower courts, including the D.C. Circuit in United States v. Jones, have relied on this difference in kind to hold that warrantless GPS monitoring constitutes an unreasonable search. 84 In fact, 82 at See DANIEL J. SOLOVE, UNDERSTANDING PRIVACY (2008); Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L. REV. 1511, 1523 (2010) ( Orin Kerr, D.C. Circuit Introduces Mosaic Theory of Fourth Amendment, Holds GPS Monitoring a Fourth Amendment Search, VOLOKH CONSPIRACY (Aug. 6, 2010, 2:46 PM), /08/06/d- c- circuit- introduces- mosaic- theory- of- fourth- amendment- holds- gps- monitoring- a- fourth- amendment- search (criticizing the Maynard Circuit in Maynard in cases involving national security i Sims, 471 U.S. 159, 178 (1985)). 84 E.g., Maynard, 615 F.3d at ; People v. Weaver, 909 N.E.2d 1195, 1201 (N.Y. 2009) (holding that warrantless installation of a GPS tracking device and subsequent 65- day

12 56 New England Law Review v much of the questioning at oral argument focused on whether GPS monitoring was different in kind than beeper- assisted tracking. 85 The oversimplification of the location- based approach is simply not calibrated to capture the pervasive nature of the intrusion. Only the situation- based approach can properly account for the intrusion posed by pervasive surveillance. VII. United States v. Jones All nine Justices in Jones held that constituted a Fourth Amendment search. Yet the Justices reached that result through two different rationales and three separate opinions. Despite their differing approaches, all of the Justices rejected a purely location- based approach to the Fourth Amendment analysis. for the Court 86 concurrence, 87 five of the Justices held that a modified version of the Olmstead Katz. These Justices stated that the Katz reasonable expectations test did not completely eliminate the trespass doctrine. 88 Yet they abandoned Olmstead all- or- nothing approach by allowing only the defendant to rely on the trespass doctrine. That is, if the government gathers information by trespassing on a Amendment search. However, the absence of a trespass does not end the surveillance constituted an unreasonable search); State v. Campbell, 759 P.2d 1040, 1049 (Or. 1988) (holding that installing tracking device without warrant constitutes an unreasonable search); State v. Jackson, 76 P.3d 217, (Wash. 2003) (holding that warrant was required for installation of GPS tracking device); see also Commonwealth v. Connolly, 913 N.E.2d 356, (Mass. 2009) (reasoning that installation and use of GPS device to track movements of 85 Transcript, supra note 76, at 4:3-5 (Roberts, C.J.) ( you get a lot more information from the GPS surveillance than you do from following a id. at 4:17-25 (Roberts, C.J.) (contrasting the significant resources required to follow a car in Knotts id. at 10: :1-9 (Alito, J.) (observing that pervasive surveillance was once impracticable but now that is changing with new technology); id. at 13:3-8 (Breyer, J.) ( difference between the monitoring and what happened in the past is memories are fallible, computers aren'ʹt. And no one, at least very rarely, sends human beings to follow people 24 id. at 35:11-14 (Ginsburg, J.) ( ra that could get ); id. at 36:3-8 (Kagan, J.) (asking why GPS tracking was different from pervasive surveillance via video cameras). 86 United States v. Jones, No , 2012 WL , at *2 (U.S. Jan. 23, 2012). 87 at *8 (Sotomayor, J., concurring). 88 at *5 (majority opinion); id. at *8 (Sotomayor, J., concurring).

13 2012 Crossroads in Privacy Law 57 Fourth Amendment analysis, because the reasonable- expectation- of- a search. Thus, these five Justices endorsed the traditional location- based approach as merely one way to identify a Fourth Amendment search but not the only way. e use of the trespass doctrine and took the position that Katz had completely eviscerated the trespass doctrine. 89 These Justices argued that approach overreached the original intent of the Fourth Amendment, disregarded past cases disavowing Olmstead, and created an unsound rule that would be difficult to apply to emerging technologies. 90 In addition, five of the Justices took the position that long- term GPS monitoring reasonable expectation of privacy, without reference to whether there was a physical trespass. 91 In an attempt to offer guidance on when GPS monitoring violates a reasonable expectation of privacy, Justice Alito Justice Alito did not attempt to draw a bright line between long- term and short- term monitoring; he merely refered to the monitoring in Knotts as short- term, and the monitoring in Jones as long- term. 93 By way of comparison, Knotts involved monitoring a single trip that took place over a matter of hours, 94 whereas Jones involved four weeks of monitoring. 95 Justice Alito justified using duration as a proxy for reasonable expectations of privacy because before GPS technology, real- world constraints made long- term monitoring extremely costly and impractical. 96 Presumably then, society would not expect such monitoring. Justice Alito also suggested a potential exception that would permit long- term monitoring for investigations involving 97 Long- would violate expectations of privacy, because society assumes that manpower and budgetary constraints render long- term monitoring highly impractical. 98 Yet Justice Alito allowed for the possibility that long- term 89 at *13 (Alito, J., concurring). 90 at * Jones, 2012 WL , at *8-10 (Sotomayor, J., concurring); id. at *11-17 (Alito, J., concurring). 92 at *17 (Alito, J., concurring) See United States v. Knotts, 460 U.S. 276, (1983). 95 Jones, 2012 WL , at *2. 96 at *17 (Alito, J., concurring)

14 58 New England Law Review v monitoring could be p 99 In such extraordinary cases, society might expect the government could exspend the money and resources necessary to conduct real- world surveillance on a massive scale because of the seriousness of the offense. The opinion makes no attempt to define what is trafficking under investigation in Jones was not such an offense. In her separate concurrence, Justice Sotomayor agreed with Justice Alito that long- term GPS monitoring during the investigation of most offenses violates a reasonable expectation of privacy. 100 But Justice Sotomayor seemed willing to go further regarding short- term monitoring. She observed that Katz 101 GPS monitoring can c movements and is so 102 In addition, pervasive monitoring nal and expressive freedoms 103 In sum, GPS 104 Justice Sotomayor would 105 CONCLUSION Jones resolved one question about the location- based and situation- based approaches but left important questions open. First, the Court declined to follow the purely location- based approach in which people have no expectation of privacy in matters exposed to the public. One vestige of the trespass doctrine remains, at least for the five Justices who would use the trespass doctrine as an alternative way to determine whether a Fourth Amendment search has occurred. For several reasons, the debate between Justices Scalia and Alito over this at *8 (Sotomayor, J., concurring). 101 Jones, 2012 WL , at *9 (Sotomayor, J., concurring). 102 (quoting Illinois v. Lidster, 540 U.S. 419, 426 (2004)). 103 Jones, 2012 WL , at *9 (Sotomayor, J., concurring). 104 (quoting United States v. Cuevas- Perez, 640 F.3d 272, 285 (7th Cir. 2011) (Flaum, J., concurring)). 105 Jones, 2012 WL , at *9 (Sotomayor, J., concurring).

15 2012 Crossroads in Privacy Law 59 holdover doctrine should be of little future import. First, advancing technology will likely make pervasive monitoring possible without any Second, one Even if a trespass were not per se evidence of a Fourth Amendment search, search violated a reasonable expectation of privacy. Next, it remains to be seen whether Congress and state legislatures will 106 This call echoes Daniel Solove argument that the traditional Fourth Amendment approach is too crude an instrument to regulate the wide variety of situations in which government may gather information about its citizens. 107 In 2011 and early 2012, state and federal legislators introduced at least seven different bills to regulate the monitoring or disclosure of geolocational information. 108 Even if short- term GPS monitoring were constitutionally permissible, the legislative branch could decide to limit, or at least control, the circumstances in which such monitoring takes place. Finally, the Jones decision sheds little light on a critical question: the role of the third- party doctrine in future surveillance cases. Under the third- party doctrine: [T]he Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed. 109 The data in the hands of third parties are not limited to geolocation information, which is available through cell tower and smart phone 106 protect a at 16 (Alito, J., concurring). 107 Daniel J. Solove, Fourth Amendment Pragmatism, 51 B.C. L. REV. 1511, (2010). 108 See, e.g., Geolocational Privacy and Surveillance Act, S. 1212, 112th Cong. (1st Sess. 2011); Location Privacy Protection Act of 2011, S. 1223, 112th Cong. (1st Sess. 2011); S. 761, Reg. Sess. (Cal. 2011); The Interception and Disclosure of Geolocation Information Protection Act of 2011, H.B. 674, 151st Gen. Assemb., Reg. Sess. (Ga. 2012); S. 360, 117th Gen. Assemb., 2d Sess. (Ind. 2012); An Act relative to location tracking by electronic communications devices, H. 1675, 162nd Sess. (N.H. 2012); Geolocation Information Protection Act, H. 2861, 53rd Legis., 2d Reg. Sess. (Okla. 2012). 109 United States v. Miller, 425 U.S. 435, 443 (1976).

16 60 New England Law Review v records. 110 Instead, as Justice Sotomayor recognized, we reveal vast amounts of information about our daily lives to third parties as a matter of course. 111 government can obtain a far fuller picture of our lives than through GPS monitoring alone. There are few practical or financial barriers to a government search of that data the data has already been collected, and the government need only ask for it. For that reason, Justice Sotomayor urged that the third- observed Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. 112 Reconciling the third- party doctrine with the realities of modern technology is the next critical question for privacy in the digital age. 110 Jones, No , 2012 WL at *8 (Sotomayor, J., concurring) (discussing GPS monitoring through smartphones); id. at *17 (Alito, J., concurring) (discussing location monitoring through cell towers and smart phones); In re Application of the United States for an Order Authorizing Disclosure of Location Information of a Specified Wireless Telephone, No SKG, 2011 WL , at *4-5 (D. Md. Aug. 3, 2011) (discussing cellular service e of cellular phone location information through cell towers). 111 Jones, No , 2012 WL at *10 (Sotomayor, J., concurring). 112