Category Archives: scotus

No Mr Chief Justice, all social media is NOT designed to be made public

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Still waiting for the full transcripts and audio from today’s oral argument in the cell phone search cases, but the NYT’s brief report has the Chief Justice quoted as saying  that phones also contained “information that is specifically designed to be made public,” mentioning Facebook and Twitter.”

Perhaps this is true for twitter.  When I tweet, it is public.   It is not likely to be seen by people except those who follow me, but it can be found easily enough.  Same with this tumblr.   If I tag this post, it can be easily found, otherwise, it is read – maybe, if I am lucky – by those who have chosen to follow me.    I may very well be speaking to myself.   

But Facebook is different.  I have PRIVACY settings, so that if you are not one of my “friends” you DO NOT SEE ANYTHING. Get that, PRIVACY settings.  Yes, I put a lot out there on Facebook, but I decide WHAT I share, and with whom I share it.  My privacy is intact.  

It is true if a cop takes my phone (and manages to get past my lock screen), he could easily enough click on Facebook, and SEE what I have posted.   And see who I have texted.  And see what apps I run.   Or what music I listen to.  Or the photos I share with followers on instagram. (Mostly he will see lots of photos of my dog Gracie, my cat Jazz, and frequent references to bacon).    But when he does that, he is doing it without my permission, and is violating my right to be free from unreasonable searches.  

My privacy has nothing to do with having something to hide.   Privacy is about choices; about control over information.  About control over what information I want to disclose to the government, and what information I want to keep to myself, or to keep to my group of friends.

Sure, a friend could share something I post with law enforcement.  I get that.  But King John Roberts is wrong in thinking that social media is designed to be made public.   He clearly does not understand what social media is about.  

My two month vigil of anticipation over whether the Supreme Court will acknowledge that we the people have a reasonable expectation of privacy in the contents of our cell phones begins now.  

I’m digging Justice Sotomayor. Voice of reason on SCOTUS

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Another Justice Sotomayor criminal procedure opinion out today, in a technical deportation case about whether possession of 1.3G of marijuana constitutes an aggravated felony and thus is deportable,  Once again, the good justice gets it right (not deportable).   She is proving herself to be the primary voice of reason on the Court in the area of criminal procedure.  And I am liking her more and more. She won me over last year with her concurrence in US v Jones, the GPS case.   

The opinion – not one I’d recommend for light reading – is Moncrieffe v Holder, available at 

Blowing in the Wind: Due Process, Crime Control, and Individual Privacy

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The Fourth Amendment – along with the Fifth and Sixth provide the foundation of the due process rights in the Constitution — those rights that all citizens are guaranteed; and protected by if they are accused and charged with a crime.   

The Fourth Amendment was created to make sure the government does not use illegal methods to get evidence.  It includes two critical aspects — “the right of the people to be secure in their persons, houses, papers, and effects against unreasonable searches and seizures,” (which describes the nature of the right),  and a warrant and probable cause requirement  — “and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”   Or in other words, the command of the Fourth Amendment is that to conduct a reasonable search, government needs a warrant, backed by probable cause. 

To understand the Fourth Amendment, we need to acknowledge a fundamental tension that exists in American politics, between individual rights (or due process) and crime control – a desire to repress criminal behavior, arrest and convict “the bad guys.”   The more we focus on protecting the due process rights of the accused, the more complicated we make the process of apprehension and prosecution of crime.     If we emphasis individual rights, we slow down crime control.   If we work to make law enforcement more efficient, we diminish individual rights.   Think of the issue as a pendulum swinging from side to side.

This tension comes through in the Supreme Court decisions that make up Fourth Amendment law.    And in the past forty years, the pendulum has swung strongly in the direction of crime control.    One of the ways this occurs is through the creation of what we can call “warrant exceptions.”  — Exceptions carved into law (through judicial decisions) that permit police to conduct searches and seizures without a warrant.   And sometimes, without probable cause.   Whether it is a Terry Stop and Frisk, a search of a person and vehicle at the time of an arrest, a K-9 dog sniff, an inventory search of an impounded car, or the use of plain view or smell, the Court has found plenty of warrant exceptions — all favoring the police over individual rights.  

The Court has a guideline it uses to determine if an individual has a privacy right against an unreasonable search and seizure.   Since the 1967 decision of United States v. Katz, the Court has measured individual expectations of privacy (to be free from specific types of searches or seizures) against society’s willingness to hold that expectation to be reasonable.   Yet, what this really means is are there five Supreme Court justices who agree that a specific expectation is reasonable.

Another form of a warrantless search is when police want to conduct surveillance – and they want to track someone’s vehicle.   Until late January, when the Supreme Court handed down a case called United States v Jones, police could make use of a GPS device, install it in a vehicle, and track that vehicle 24 hours a day.    They did not need a warrant, because courts held that an individual had no expectation of privacy in driving on public roads and highways, and tracking of a vehicle, did not raise Fourth Amendment concerns.    More than 24 lower courts (both federal courts and state courts) had ruled that warrantless GPS surveillance was acceptable.  

United States v Jones involved a situation where the Federal Government placed a GPS on a vehicle of a suspected drug dealer, and tracked it for  2 months.  Ultimately the evidence provided by the GPS led to a search warrant, and Jones was arrested and convicted for distribution of cocaine.  He was sentenced to life in prison.  Jones claimed that the use of the GPS to track him violated his Fourth Amendment rights to be free from unreasonable searches and seizures.  

Why would being able to use GPS to track a person be a problem?   From the perspective of police, it is good police work, it is efficient, it provides a wealth of information.   And it helps put away crooks like Antoine Jones.   The very advantages of GPS are its greatest problems.   But it also gives Government an awful lot of information.  As a Judge on the New York Court of Appeals wrote in 2009,  

The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the   AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.” (People v Weaver, J. Lippmann)

When the Supreme Court decided to hear the Jones case, it suggested to folks who follow the Fourth Amendment that it would be a critical decision — if the Court upheld the use of warrantless GPS surveillance, it would say “The Fourth Amendment really isn’t a significant limitation of government; it does not really protect a lot of our privacy.“    But if the court ruled it unconstitutional, the Case could suggest a different direction for the Fourth Amendment entirely, and a new willingness to strike more of balance between due process and crime control.     

The Supreme Court’s decision in Jones came closer to the latter, but it left a lot of questions open.   All nine justices agreed that a warrant was necessary to conduct GPS surveillance – but there were three different approaches.    Justice Scalia argued that the use of GPS was unconstitutional because the physical placement of the device was a “trespass” or an intrusion on the right of a people to be secure in the persons, papers, houses, and effects against unreasonable searches and seizures.    Scalia did not think in terms of privacy; for him it was a straight forward application of a intrusion into a protected place.   Justice Alito on the contrary, argued that the use of GPS violated Jones’ privacy – and that there is an expectation of privacy in being free from constant government surveillance.  Yet, he also thought that there may be a privacy – convenience tradeoff.  People may be willing to sacrifice some of their privacy for the convenience that technology provides.    Justice Sotomayor wrote an opinion that agreed with Scalia that the use of GPS was a trespass, but was sympathetic to Alito’s privacy concerns.

The Court left more questions unanswered than they resolved.   What happens if the police contact On-Star and have them turn on GPS tracking for them (and thus do not “trespass” on the vehicle?”   What about entirely electronic surveillance?   Can police just go to your internet provider and find out all the websites you have visited?   Or what about your cell phone?    This week a Federal Court in Indiana held that police do not need a warrant to search a cell phone at the time of an arrest.   It is likely that this issue will make it to the Supreme Court in the next couple years – but it is not altogether clear what the end result would be. 

We live in an interesting time.  The Fourth Amendment may be viewed as a detriment to effective law enforcement, or it may be a beacon of individual rights and privacy. For example, since warrantless GPS surveillance was ruled unconstitutional, the FBI has had to remove more than 3,000 GPS units from vehicles it was tracking.  

The Supreme Court wields a lot of power in determining the direction in which the winds blow.  If the Court sides with crime control, the only solution for privacy advocates will be to put the issue on the public agenda.  

Warrantless GPS Surveillance, Privacy, and the Supreme Court

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Link: Warrantless GPS Surveillance, Privacy, and the Supreme Court

Join me for a discussion about the implications of the Supreme Court’s recent decision in United States v. Jones, which ruled that police must get a warrant before using GPS to track a suspect.    

I’ll be posting segments of my talk as I finish it here first.  

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