Privacy law scholar Dan Solove comments on United States v. Jones, scheduled for oral argument in the Supreme Court tomorrow. He writes, in part:
The Supreme Court has long held that there is no expectation of privacy in public for the purposes of the Fourth Amendment. Because the Fourth Amendment turns on the existence of a reasonable expectation of privacy, the Court’s logic means that the Fourth Amendment provides no protection to surveillance in public. In United States v. Jones, the Court will confront just how far this logic can extend.
[…]
The problem with the Court’s existing view of no privacy in public is that people often do expect privacy in public. The Court’s conception of privacy wrongly views privacy as total secrecy and fails to recognize that people often have practical obscurity in public.
Let’s look past conceptions of privacy and ask a more simple question: Should the government be required to obtain a warrant (prior judicial authorization) before installing a GPS device on a person’s car? The answer seems clear – yes. GPS surveillance is quite pervasive and far-reaching; it is an enormous exercise of government power, and one that is best regulated with judicial oversight rather than left to the unfettered discretion of law enforcement officials.
Read more on American Constitution Society. I always appreciate Dan’s thoughtful analyses of privacy issues. I don’t think his suggested two-prong test is objective enough, however. Dan proposes that the protections of the Fourth Amendment should apply to surveillance technology used in public spaces if the technology:
(1) extends significantly beyond human capabilities; and (2) is used in a manner beyond its ordinary use by the general public.
But GPS is used by the general public in ordinary use and without consent. It is used to track children by both parents and schools – and in the latter case, often without the parents’ actual consent. It is used by caregivers who are concerned that a relative with Alzheimer’s will get lost – often without the patient’s knowledge or consent. I think we will see even greater “ordinary” use in the next five years, too.
Would it perhaps make more sense to suggest that the protections should apply if the government wishes to use the technology in public spaces when law enforcement is not prepared to do the manual grunt work/surveillance or cannot accomplish without technological assistance, i.e., if law enforcement wants to bypass or avoid using their own senses and human capabilities or needs more sophisticated means, they should obtain judicial approval?