Right of Privacy and Technology

R. Tamara De Silva

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Constitutional Law Attorney

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Posted about 2 years ago. 2 helpful votes

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It is time to consider what we understand our right to privacy to actually mean under the Fourth Amendment to the United States Constitution in light of dramatic technological change. The Supreme Court ruled unanimously in United States v. Jones [1] that tracking a criminal suspect by GPS requires a warrant because it involves in Justice Scalia’s words the Government’s physical occupation of a private property. But this narrow ruling that may be highly specific to the fact pattern of the case and it is not the reason the case is important. As Justice Sotomayer and Justice Alito observed, technology now so dramatically tilts the scales of power toward the government and away from the individual because technology empowers the Government to conduct surveillance on every aspect of a person’s life. There are invasions of privacy that no longer require the batting down of a doors by redcoats but can be conducted without physical invasion, unknown and unfelt, cheaply and for long periods of time.

At first blush United States v. Jones is an important victory for the Fourth Amendment because it reaffirms the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures." The Court held that the Government's planting of a GPS device onto a Jeep constituted a "search." Antoine Jones, a nightclub owner, was convicted in Washington DC of dealing drugs. Much of the evidence used to obtain his conviction (2,000 pages to be exact) was procured from a GPS that had been planted to the bumper of his wife’s car.

The decision is important principally because it re-affirms an enormously important principle articulated by Justice Harlan in Katz v. United States, which states that the Fourth Amendment protects people not places and as such a person's "reasonable expectation of privacy." It was thought before cases like Katz that the Fourth Amendment's protections extended to places...homes, private residences, etc (arising from the idea of trespass).

Yet the opinion itself is far more interesting than the ruling of the case because the Court's dicta (outside the ruling on the matter at hand) raise some profound issues. The first of these is that it addresses how a person's reasonable privacy expectations needs to be defined by the legislature now because of how technology has affected our lives.

The Court pointed out how new technologies have caused our expectations of privacy to be in flux and that while new technologies have vastly increased our convenience and security, there are trade-offs to privacy that the Legislature must now address. Another incredible point is that the traditional surveillance for long periods of time was cost prohibitive and impractical-yet this has all changed and dramatically so. If you think about this, whatever your opinions about the NDAA for instance, new surveillance technologies like satellites and drones cannot but fundamentally change what our basic notions of privacy. They already have. The Public needs to understand what all this means because the pace of change in technology has far exceeded our notions of what the Fourth Amendment means. This is the real significance of the case-it should make the reader think of these things-they are of vital importance to freedom and individual liberty.

R. Tamara de Silva

[1] http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

Additional Resources

United States v. Jones

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