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September 14, 2011

U.S. v. Jones to Supreme Court

It may be impossible to overstate the potential importance of the upcoming Supreme Court case looking at the warrantless use of GPS tracking devices by law enforcement. Police2 The case is United States v. Jones, and there is a nice collection of documents on scotusblog.

I have written some articles about this issue, as well as posting on this blog and the Stockycat blog.  For those looking for a more detailed summary of my views, you can read this law review article I wrote last fall.

(Yes, sometimes hyped cases before the Supreme Court fizzle or get decided on more narrow grounds.  So please take that into account when you continue reading.)

The significance of this case rests, in my opinion, on the fact that this is the first time the Supreme Court has been forced to address whether the aggregation of data can pose significant and unique privacy concerns. In other words, is there a difference between limited observations of people in public, and 24 hour comprehensive surveillance?  This is one of the first opportunities for the court to examine how to apply mid-20th century legal principles to 21st century technology.

A New York Times article over the weekend emphasized this point.  The title is enough, perhaps: Court Case Asks if ‘Big Brother’ Is Spelled GPSThe article is a nice non-lawerly summary of the current, unsettled, law. The author writes, that the courts’ decision “will bring Fourth Amendment law into the digital age, addressing how its 18th-century prohibition of  unreasonable searches and seizures” applies to a world in which people’s movements are continuously recorded by devices in their cars, pockets and purses, by toll plazas and by transit systems.” 

If the court sides against law enforcement, this will be the first time that the Court has found that observations of public movements which allow the government to observe larger patterns of behavior would convert legitimate short-term surveillance into a search prohibited by the Fourth Amendment. And the implications of this decision for homeland security practices, such as data mining, are easy to imagine. 



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