The development of new surveillance technologies will provide perpetual fodder for challenging the meaning and application of the 4th Amendment. For example, the Court has decided that a warrant is required not only before attaching a wiretap to a suspect’s phone but also before accessing his computer files. More recently, in the 2012 case United States v. Jones, the Court held that attaching a GPS device to a car without a warrant violated the 4th Amendment
The decision in Jones was unanimous; all the judges agreed that the state had violated the 4th Amendment when they attached a GPS devise without a valid warrant and tracked a suspect’s movements for four weeks.
In Jones, the various Justices arrived at their conclusions from different perspectives. As a consequence, they perhaps left open more questions than they answered. Justice Scalia, delivering the opinion of the Court, decided the case on very narrow grounds. He pointed out that “for most of our history the Fourth Amendment was understood to embody a particular concern for government trespass upon the areas (‘persons, houses, papers, and effects’) it enumerates.” Relying on an older standard for determining what constitutes a “search,” Scalia limited his analysis to the two facts that 1) a physical trespass had occurred (when the officers attached the GPS devise to the underside of Jones’ Jeep); and 2) information was gathered as a result of this trespass (when officers tracked the movements of the Jeep for four weeks). Based on these two facts alone, Scalia concluded: “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.”
The concurring Justices, while not denying Scalia’s reasoning, seemed impatient to decide the question on grounds that would offer guidance for those potential (and, indeed, inevitable) circumstances when a physical trespass would not be necessary in order to gather the same information electronically. Since Katz v. United States (1967), the Court has relied on the rule that the government cannot intrude upon a person’s “reasonable expectation of privacy,” even when no physical trespass takes place. Scalia declined to consider the possible applicability of the Katz rule to this case, since the older understanding of the 4th Amendment sufficed to settle the question. Justice Sotomayor agreed that an analysis of trespass was sufficient in this case, but she warned that it would not be long before the Court would have to consider a similar case where no physical trespass had occurred. Without stricter guidance, the relatively cheap and easy surveillance methods made possible by advanced technology would allow “the government to ascertain, more or less at will, [people’s] political and religious beliefs, sexual habits, and so on.” Even if the police did not need to intrude upon people’s private property in order to gather this information, this unfettered power would nonetheless be inimical to “the Fourth Amendment’s goal to curb arbitrary exercises of police power.”
Justice Alito, in another concurring opinion, echoed these concerns and suggested that the Katz test was a more relevant standard for modern cases involving electronic surveillance. Nevertheless, Alito conceded that the Katz test opened up its own set of problems, especially since “reasonable expectations of privacy” altered over time and were themselves influenced by technological advances. People used to expect a greater degree of privacy before the age of cell phones and social media websites. For that reason, he concluded: “In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative.” This attempt by the judges to punt the question of electronic surveillance to the legislative branch again emphasizes the difficulty and inconsistency inherent in 4th Amendment jurisprudence.