Making Sense of Jones

Since the opinions were released yesterday morning, the blawgosphere has cranked out a ton of posts about what the  Jones v. United States decision means. The majority decision was written by Scalia, with concurrences by Alito and Sotomayor. While it was 9-0 on outcome, it was anything but on rationale.

The shorthand reaction broke it down this way:

The Scalia opinion had the support of Chief Justice John G. Roberts, Jr., and Justices Anthony M. Kennedy and Clarence Thomas, in addition to Sotomayor’s notation that she joined it.  It thus did represent a majority declaration.  No other Justice joined the Sotomayor concurrence.  The Alito concurrence was joined by Justices Stephen G. Breyer, Ruth Bader Ginsburg and Elena Kagan.

Orin Kerr, whose article, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801 (2004), was cited by both the majority and the concurrence, wrote a bevy of posts about it, trying to make sense of it.  Others, who didn’t want to think so hard, wrote simply that the Supreme Court held that the use of GPS tracking device requires a warrant, a view that shows why internet pundits can’t necessarily be trusted.

The best analysis of the varying positions on the court was written by Tom Goldstein at SCOTUSBlog :

Here is the upshot.  Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view.  Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

Goldstein correctly notes that this raises some significant questions:

First, does the “search” caused by installing a GPS device require a warrant?  The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.

Second, assuming no warrant is required for installation, is a warrant required for short-term monitoring of the GPS device?  Again, the answer may be no, as the majority conspicuously avoids addressing this issue and four members of the Court (again, those who join the Alito concurrence) squarely say that the answer is “no” (Alito op. at 13).  Justice Sotomayor alone says that this scenario “will require particular attention.”

Neither the Scalia majority nor the Alito concurrence provides much of vision of the future.  This clash between the two sums up the problem :

The Scalia and Alito opinions clashed, almost comically, over whether there was a 1791 equivalent of the kind of privacy invasion that GPS devices might threaten under a theory that they involved a “trespass” on private property.   Back then, Scalia suggested, “a constable” might conceal himself “in the target’s coach in order to track its movements.”   Alito countered that “this would have required either a gigantic coach, a very tiny constable, or both — not to mention a constable with incredible fortitude and patience” — a reference to the fact that, in the case before the Court, the monitoring went on 24 hours a day for 28 days.

It might be comical, except that these are our Supreme Court justices squabbling over the future of our privacy and personal sanctity while making jokes about tiny constables.  I was beginning to think that Orin Kerr was right  when he came up with his Equilibrium-Adjustment Theory, that legal doctrine is mere nonsense set out for public consumption to make us think there’s some actual rule of law involved, when this is all really about the justices playing “rough justice” with our rights and using any excuse they think they can get away with.

But if that was the case, nobody invited Sonia Sotomayor to the party.  In her separate concurrence, Justice Sotomayor  seems to recognize that neither drawing analogies to 1791 nor leaving the scope of our rights to the legislative process cuts it. 

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.

But she’s one of nine, and this quote barely scratches the surface of the problems raised by technology, the third-party doctrine, Katz’s reasonable expectation of privacy test and precedent.

In my  earlier post about  Jones, I saw this case as being a litmus test for the Court’s recognition of the problems technology presented to the future of Fourth Amendment jurisprudence.

The question of whether the Supreme Court has both the depth of understanding of the nightmare potential technology brings to the Fourth Amendment, as well as the long-sightedness to realize that it’s decision will be extrapolated to all manner of technology that we have yet to conceive of, is about as scary as it comes.

That one justice of nine seems to have some appreciation of the danger ahead, how poorly law developed to deal with normal-sized coaches and full-height constables applies in the digital age, is better than nothing.  But given how the Court broke down here, it’s clearly not good enough. 

Does the plant of a GPS device on a car require a warrant? Under the particular facts of Jones, yes. (Addendum: this is the net result, not the holding of the case, which skirted the issue entirely.) Under other facts, who knows. And how does that translate to the next shiny device? Only lone Justice Sotomayor even cares, while the rest seem determined to ignore the digital age at all costs. 

To the extent this case presented an opportunity for the Supreme Court to move into the digital age, to acknowledge that technology has changed the fundamental equations and demands attention, the Jones decision shows a Court mired in the past and ignorant of the future.  Or maybe a Court making up doctrinal excuses and divvying up rights as they, in their nine-headed “wisdom,” think we deserve them. 

What this is not is a decision that offers any comfort that the Supreme Court is coming to grips with the impact of technological change and our personal freedoms.  One out of nine isn’t good enough.

14 thoughts on “Making Sense of Jones

  1. Peter Duveen

    The mystery to me is that such a case, or similar case, has not been examined by the court before. Surveillance technology has been around for quite a while. I expect our system of justice is not functioning very efficiently. Maybe we ought to look for a more efficient means of reviewing the constitutionality of laws and government actions, perhaps something of a more local nature.

  2. SHG

    The Court has a long history of studiously avoiding addressing the application of law to life as it exists, whether because they deliberately limit decisions that they should know will raise more questions than answers, or by describing the world in the fictional terms (i.e., the New Professionalism) that only a Supreme Court Justice could love, or by simply ignoring the consequences of messes they create now to be sorted out decades later.

    We have some very real problems on the table, and the Supreme Court has failed miserably to provide the answers for which it exists. We have local judges who are left clueless about how to deal with the problems as a result. It’s not efficient. It’s not effective.  And nobody is better off functioning in blind ignorance awaiting guidance that won’t come for years.

  3. Dan

    I suppose the takeaway is that we can expect an uptick in 1) police department hiring of tiny people and 2) short term (anything less than four weeks) surveillance by GPS.

  4. SHG

    Or bigger trunks making a comeback, or cops busy installing GPS devices while someone is enjoying the two-fer special at Appleby’s.

  5. Burgers Allday


    say you are defending somebody and the prosecution introduces a snippet (lets say 20 minutes worth) of GPS surveillance evidence putting your clients vehicle into some kind of proximity to some crime with which your defendant has been charged.

    Can you force the government to disclose the full extent of their surveillance in a court case? Does the “extraneous” GPS monitoring data amount to discoverable evidence? If it is I am not sure why.

    The reason I ask is that some pundits are saying that the Jones court seemed amenable to “short term” surveillance, assuming the GPS could be installed without a trespass. But won’t that just mean that police will continue to do long term surveillance, but only provide the briefest snippets of the long surveillance to non-police-officers?

    Maybe not, but I can’t see why not.

  6. SHG

    Great question, and one that leads to about 100 variations that raise similar questions, none of which are answered by Jones. There is so much to ponder in there that it’s way beyond the scope of a blawg comment. Thanks for raising it.

  7. Dan

    SHG- do you see Alito’s comment that “…it is almost impossible to think of late 18th-century situations that are analogous to what took place in this case” and his mocking of the tiny constable and gigantic carriage as a call to stop doing 4th amendment analysis by analogy, and is that similar to what you’ve advocated in the past?

  8. A Voice of Sanity

    I’m sure you’ll think this terribly naive, but if one citizen can’t do this to another (or to their property) why can the police do it without a warrant? It isn’t as if they are directly observing an offence take place (I presume).

  9. SHG

    The police are authorized to investigate crimes. There are many things the police can do that other citizens can’t. Some of them require warrants.

  10. Nathaniel Baca

    It is nice to see a thorough reading of the Jones case and how the court plans on interpreting the GPS tracking and the need to look at time restraints when determining whether their warrantless use is lawful. A lot of blogs are making this seem clear cut which it certainly was not.

  11. SHG

    For the most part, I’ve been deeply disappointed with the commentary I’ve seen on the decision, particularly with the second string lawprofs (who shall remain nameless so they don’t cry).

  12. A Voice of Sanity

    So, if you suspect a GPS has been attached to your vehicle, can you or someone you designate find it, remove it, discard it or destroy it? Do you have an ordinary or a special duty of care?

  13. SHG

    Rather than destroy it, I would attach it to the nearest Porsche available so you can claim you spend all your time in the hospital, which will always come in hand for something.

  14. Doug Cornelius

    I wonder if the Alito side feels different now that the FBI revealed that they had 3,000 GPS trackers in service. [Ed. Note: Link deleted per rules.]

    On another note, Sorry to see that you’ve stopped publishing new stories. I miss your insights.

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