The Journal News: Ruling confronts privacy issue in a wireless age

Pace Law professor Bennett L. Gershman published an op-ed in The Journal News on the legalities of attaching tracking devices to a suspect’s vehicle.

From the Op-Ed:

The New York Court of Appeals got it right after all.

In People v. Weaver, decided two years ago, New York’s highest court ruled that the surreptitious attachment by law enforcement agents of a GPS tracking device to the underside of the defendant’s vehicle and the continuous monitoring of his movements for 65 consecutive days constituted a “search” under the New York State Constitution that required a warrant. The Court of Appeals described the case as “momentous” – it involved the impact of new and highly sophisticated technology on society’s expectations of so-called “locational privacy” and the ability of law enforcement to use this new technology to track people’s movements without constitutional constraints. The Court of Appeals recognized that the Supreme Court had earlier held that law enforcement’s placement of a beeper on a car did not constitute a Fourth Amendment violation, and the three dissenters in Weaver criticized the majority for its excessive and unreasonable departure from federal constitutional law.

The majority is Weaver has now been vindicated. The U.S. Supreme Court on Monday, in United States v. Jones, unanimously ruled that the placement of a GPS device on a car and tracking its movements for 28 days was a search that violated the Fourth Amendment. The majority opinion by Justice Antonin Scalia focused on the actual physical intrusion by the police into the defendant’s car as the rationale for finding the violation. By attaching the GPS to the defendant’s vehicle, the police encroached on a protected area of privacy – a trespass onto the defendant’s private property. However, the Supreme Court majority did not address the far more relevant privacy issue that so concerned the majority of judges on New York Court of Appeals, and five other justices on the Supreme Court.

Indeed, Justice Sonia Sotomayor, in her concurring opinion, went out of her way to distance herself from Scalia’s majority opinion. She pointed out that a physical trespass into private property is unnecessary for many forms of government surveillance and the majority’s trespass test is artificial and provides very little guidance to the police. Moreover, the trespass test really undervalues society’s privacy expectations, which should be the focus of the Fourth Amendment analysis. She emphasized how extensive GPS surveillance intrudes on these legitimate privacy interests by citing and quoting from the powerful opinion of New York Chief Judge Jonathan Lippman in Weaver of the far-reaching intrusion into privacy that the GPS surveillance permits. GPS monitoring, as Lippman saw it, can disclose “trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on.” Such constant and relentless surveillance, as Sotomayor and Lippman saw it, facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over an unlimited period.

The concurring opinion of Justice Samuel Alito agreed with much of what Sotomayor said, and chided Scalia for basing his decision on outmoded tort law. Quoting Justice Louis Brandeis, Alito would have used as the rationale for finding a Fourth Amendment violation the principle that the Fourth Amendment protects against “every unjustifiable intrusion by the government upon the privacy of the individual.” These unjustifiable intrusions can be seen by looking to society’s reasonable expectations of privacy. For example, is it possible that people would accept without complaint the practice by government agents of gaining access to every Web site that a person has visited in the past month, or year? In this digital age people reveal abundant information about themselves to third parties, such as phone numbers they dial, or text, to their cellular providers, or URLs they visit, and e-mail addresses with which they correspond to their Internet service providers.Although the majority’s approach is much more limited than the rationale that Sotomayor and the Alito group would adopt, the emergence of so many new electronic tracking devices is going to raise constitutional issues that will occupy the courts for many years. Cellphones and other wireless devices allow wireless carriers to track and record the precise location of users; indeed, more than 322 million wireless devices were in use in the United States as of June 2011. The government has easy access to this information without committing a trespass. But it’s hard to believe that the Court would permit law enforcement to make use of this information for surveillance without first obtaining a warrant.

Read the original article here.

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