Strahilevitz on Personal Privacy Challenges and US v Jones
The U.S. Supreme Court has just laid down a major defense of personal privacy — and raised major questions about law enforcement's ability to use new technologies to fight crime. In a landmark decision this week, the court broadly interpreted the people's Fourth Amendment rights "to be secure in their persons, houses, papers, and effects, against unreasonable searches."
In the case, U.S. v. Jones, the justices considered whether the police installation of a tiny Global Positioning System device on the underside of Antoine Jones' car for the purpose of monitoring his movements constituted a "search." If so, the police would usually need to obtain a warrant from a judge before conducting surveillance.
In Jones, a majority of the court found that the installation of the GPS device was unconstitutional because the police interfered with Jones' property without his consent. A different majority of five justices simultaneously indicated that the police use of the GPS device to monitor Jones' movements during a four-week period was unconstitutional because it interfered with contemporary Americans' "reasonable expectations of privacy."
The decision means that it now will be harder for the government to track our whereabouts 24/7. This will please many people. Yet the Jones decision will likely increase crime by slowing down police investigations, disturbing many others. And those important interests and GPS itself are not the only things at stake.
Several current police practices are suddenly constitutionally suspect. For example, in Washington, D.C., and its neighboring suburbs, more than 250 cameras continuously monitor the license plates of every vehicle that passes and store that information in a massive database. The data are retained for three years. When a stolen car drives by, law enforcement is notified. After a bank robbery occurs, the police can pull the information from nearby cameras to identify possible getaway cars. Now the D.C. cops may need a warrant every time they want to access the database. And that's only the beginning.