Ed's Blog

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.

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