Possible Warrant Requirements for Data Collection Across Communications Technologies Pondered After ‘Jones’

The Supreme Court’s Jones decision has left the law in disarray concerning warrantless government access to information from cell-site tracking, email, cloud computing and Web surfing, legal experts said Wednesday. “The law is really up in the air and uncertain at this point,” said Hanni Fakhoury, an Electronic Frontier Foundation lawyer. Susan Axelrod, senior appellate counsel at the Manhattan District Attorney’s office, said that “for a prosecutor, it’s very frustrating” trying to deal with the questions opened by the case.

The significance of the three opinions in the January U.S. v Jones decisions on GPS tracking turns the usual priority on its head, said speakers on an American Bar Association teleconference. The majority opinion by Justice Antonin Scalia “won’t mean much,” and concurrences by Justices Samuel Alito, on behalf of three colleagues, and Sonya Sotomayor, writing only for herself, “will mean a great deal” in shaping the law, said Lior Strahilevitz, a University of Chicago law professor. Sotomayor has singlehandedly posed a need for complete re-evaluation of U.S. constitutional privacy doctrine, Fakhoury said. The majority and Sotomayor held that warrantless placement of a GPS tracker on a car violated the Fourth Amendment. The concurrences said it was also infringed because long-term surveillance even of activity in public violated a “reasonable expectation of privacy.”

Jones has upset clear, central understandings that information voluntarily turned over to a business has no Fourth Amendment protection when sought by the government and that each instance of data-gathering is to be judged in isolation, the speakers said. “The courts are going to start reviewing the third-party doctrine,” Axelrod predicted. And the case suggests that a “mosaic theory,” looking at the patterns that can be created from broad collection of information about a person’s public activities, “has more legs than we thought” based on lower-court rulings that had rejected the approach, she said.

Axelrod predicted that Scalia “will reject the mosaic idea.” But Sotomayor will embrace it, and Alito will accept the theory when he thinks the government has played a major role in creating the data at issue, Axelrod said. When communications providers are generating information for their business purposes, she said, she wouldn’t expect Fourth Amendment violations to be found, but “I'm particularly bad at reading the tea leaves of the U.S. Supreme Court."

Alito may have left open a role for Congress to shape the constitutional law of privacy, Strahilevitz said. The justice’s opinion is murky on the point, saying lawmakers as political officials are in the best position to take action embodying the Fourth Amendment standard of a “reasonable expectation,” but he added that since legislatures haven’t weighed in on the issue, the Supreme Court had to issue what ordinarily would be the last word on a constitutional question, the professor said. The concurrence can be read as saying “Congress still has a chance to affect the course” of the Fourth Amendment case law, he said. For now, though, the question is an abstract one, since the proposed Geolocation Privacy and Surveillance Act has “essentially become bottled up in a committee” and has lost any momentum because of the Jones ruling, Strahilevitz said. Probably “what we're going to hear from Congress is not much, or nothing,” about GPS tracking, he said.

Axelrod said she would prefer Congress, not the courts, to decide these matters. Statutes aren’t carved in stone the way the Supreme Court’s constitutional rulings are, so legislation is better suited to dynamic technologies, she said. Judges often are more fearful of the privacy risks of information and communications technology than they are appreciative of its benefits in law enforcement, and they aren’t likely to be aware of broad implications of their decisions, Axelrod said. Fakhoury said both government branches have important roles in policymaking, including by imposing limits on official powers.