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How the Supreme Court Botched U.S. v. Jones

By Robyn Hagan Cain | Last updated on

The Supreme Court fumbled the warrantless GPS tracking decision on Monday.

Yes, privacy advocates are claiming the case as a victory. And it is. But U.S. v. Jones is more of a field-goal-in-overtime victory, than a resounding win for privacy rights.

Here's why.

Justice Scalia wrote for the Jones majority that physical trespass -- the act of placing the GPS tracker on the suspect's car -- triggered the unreasonable search. "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."

Then Scalia went on to reference a case from 1765 as support for why planting an electronic device on someone's car without a warrant qualifies as an unreasonable search.

Physically planting a GPS tracking device on a suspect's car is so eight years ago. (Literally. The GPS plant at the center of the U.S. v. Jones controversy occurred in 2004.)

The majority's Jones analysis doesn't stop the government from accessing private data through a third party, like a cell phone carrier or OnStar. Justice Alito raised that point in his concurrence, arguing that the Katz test should have applied, and the Court should have determined whether long-term, warrantless GPS tracking violates a suspect's reasonable expectation of privacy.

Justice Sotomayor takes that reasoning one step further, arguing that the unreliable ear is outdated in an age when we voluntarily provide so much information about ourselves to third parties -- like phone carriers and Internet service providers -- who we expect to keep quiet. "I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection."

To that end, Sotomayor says that Fourth Amendment jurisprudence must cease to "treat secrecy as a prerequisite for privacy."

Let's put this into perspective: Most of us have a phone with location services, or a GPS system in our cars. (Our mom still uses an AOL email account and a 10-year-old Nokia brick phone, and she even has OnStar.) That means almost anyone in America can arguably be tracked without a warrant, because the Jones majority was silent as to whether the public has a reasonable expectation of privacy in warrantless GPS tracking cases.

The U.S. v. Jones decision isn't a complete disaster, but it's certainly not a victory over unreasonable searches in high-tech age.

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