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Ed Mierzwinski
Senior Director, Federal Consumer Program

Author: Ed Mierzwinski

Senior Director, Federal Consumer Program

202-461-3821

Started on staff: 1977
B.A., M.S., University of Connecticut

Ed oversees U.S. PIRG’s federal consumer program, helping to lead national efforts to improve consumer credit reporting laws, identity theft protections, product safety regulations and more. Ed is co-founder and continuing leader of the coalition, Americans For Financial Reform, which fought for the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including as its centerpiece the Consumer Financial Protection Bureau. He was awarded the Consumer Federation of America's Esther Peterson Consumer Service Award in 2006, Privacy International's Brandeis Award in 2003, and numerous annual "Top Lobbyist" awards from The Hill and other outlets. Ed lives in Virginia, and on weekends he enjoys biking with friends on the many local bicycle trails.

Today's unanimous Supreme Court decision in United States v. Jones (docket 10-1259), read most narrowly, merely says: "We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a “search.”

That means the government should be careful to obtain valid warrants and comply with the Constitution's 4th Amendment limits on "unreasonable searches and seizures."

But the Court offered tantalizing clues to its thinking that, in the modern electronic age, reasonable expectations of privacy warrant a review of Government -- and even third party -- collection of information.

Four justices concurred in the narrowest opinion, written by Justice Scalia. Justice Alito wrote the middle view, again joined by a total of 4 justices.

The ninth justice, Sonia Sotomayor, offered a separate concurrence. It first  explores the "unique attributes of GPS surveillance" when it is used by the government.

"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."

She then ponders more broadly the collection of personal information by third parties (web sites, etc.) in the electronic age:

"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. Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not."

Justice Sotomayor's primary concerns about third-party information gathering and sharing are certainly focused on whether it will be obtained by the government, but appear much broader and could impact future decisions about commercial use of information, too. And as she alludes, elements of Justice Alito's "middle view" concurrence refer to related matters. All the decisions, preceded by a syllabus, are available in the 34 page pdf of United States v. Jones (docket 10-1259).

Scotusblog.com explains the case and its history and the distinctions in the concurrences that add up to a 9-0 loss for the government. More from the New York Times.

Ed Mierzwinski
Senior Director, Federal Consumer Program

Author: Ed Mierzwinski

Senior Director, Federal Consumer Program

202-461-3821

Started on staff: 1977
B.A., M.S., University of Connecticut

Ed oversees U.S. PIRG’s federal consumer program, helping to lead national efforts to improve consumer credit reporting laws, identity theft protections, product safety regulations and more. Ed is co-founder and continuing leader of the coalition, Americans For Financial Reform, which fought for the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010, including as its centerpiece the Consumer Financial Protection Bureau. He was awarded the Consumer Federation of America's Esther Peterson Consumer Service Award in 2006, Privacy International's Brandeis Award in 2003, and numerous annual "Top Lobbyist" awards from The Hill and other outlets. Ed lives in Virginia, and on weekends he enjoys biking with friends on the many local bicycle trails.