The key holding in Jones is a big enough deal. Investigators had applied for a search warrant to attach a GPS tracking device to Jones?s car that would let them track its location 24/7. The warrant they received was good for 10 days, but for some reason they didn?t get around to attaching the device until the warrant had expired. Despite the absence of a warrant, they nonetheless tracked his movements for 28 days. ?
The investigators discovered information that led to Jones?s arrest on drug charges, but when the case went to District Court, his lawyers moved to suppress the GPS information because they argued it was the product of an illegal, warrantless search. The District Court mostly disagreed, holding that when Jones was driving on public roads he had no "expectation of privacy," since he was visible to anyone who cared to look. In essence, that lower court said, tracking Jones while he was in public wasn?t a search because the action didn?t discover anything that wouldn?t have been readily available to any observer on the street.
The Supreme Court disagreed. In a majority opinion written by Justice Antonin Scalia, the court found that attaching something to a person?s car is a trespass upon that person?s property. The Fourth Amendment protects the "right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures," and a car, in essence, is an "effect." Although previous cases involving issues such as phone-tapping have turned on "reasonable expectations of privacy," the court held that when the government trespasses on your property, that is a search. And in the absence of a warrant, a search is presumed unreasonable. (The government tried to argue that this search was reasonable even without a warrant, but the court held that it had forfeited this argument by failing to raise it earlier.)
Before Jones, a number of lower courts had said that a GPS tracker isn?t an invasion of your privacy when you?re driving on public roads. (Personally, I?ve always been skeptical of that. I suspect that if, say, I attached a GPS tracker to a prosecutor?s car, they?d find a way to charge me with something.) But now it?s clear that trespassing on someone?s property?even "personal" property like a car as opposed to "real" property like a house?is a search and will usually require a warrant. Such warrants aren?t that hard to get, of course, but the process does impose some extra discipline upon law enforcement.
But here?s the really interesting, though subtler, result of Jones: Although the court didn?t really rule on this issue in the case, five justices signaled sympathy with the "mosaic" theory of privacy raised by the intermediate Court of Appeals for the D.C. Circuit. The mosiac theory holds that aggregating lots of pieces of information about an individual that in themselves may be harmless may nonetheless, taken as a whole, constitute a search?even if all the data is public.
Justice Sonia Sotomayor, who joined the majority opinion, also wrote a separate opinion saying that future cases involving GPS data obtained, for example, from car manufacturers? location services might raise Fourth Amendment issues. Fourth Amendment law bars unreasonable searches, and Sotomayor wrote that the notion of what constitutes an unreasonable search may change with technology. People may disclose a list of search terms to a search engine, but that doesn?t mean that tracking years of a person?s Web history can?t be construed as a search on the part of the government.
In a separate concurring opinion, four justices?Alito, Ginsburg, Breyer, and Kagan?criticized the majority?s approach as unnecessarily limited by "18th century" views of property. Noting that there are many services such as cellphone tracking, toll-road records, and modern cars? onboard data recorders that allow cars to be tracked without trespassing, these justices suggested the need for a broader focus on privacy issues. In this they, like Justice Sotomayor, seem sympathetic to the D.C. Circuit?s suggestion that when the government collects a lot of bits of data about you, it?s the aggregate of the data?the mosaic that it represents about you?that determines whether there is a search, regardless of the status of any particular bit. ?
The Jones case wound up turning on a relatively traditional concern?that attaching a gadget to someone?s car without permission is a trespass against property. But five justices have now signaled that, in some future case, they might be open to a departure from traditional rules.
This seems worthwhile to me. The Constitution bars unreasonable searches. The ability to piece together millions of pieces of information about a person?s life and activities wasn?t present at the time the Fourth Amendment was ratified, and it seems silly to pretend that putting all that information together in one place isn?t a search just because each bit of it is something that someone might have stumbled across on his or her own. (We even call it a search when we Google someone, don?t we?)
What searches are reasonable and what searches are unreasonable is a different question, of course. (Googling, I feel sure, is reasonable.) But we won?t protect privacy in the 21st century by limiting our analysis to 18th-century circumstances.
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