Three Cheers for Obscurity, an Unspoken Beneficiary of United States v. Jones
By Woodrow Hartzog • February 2, 2012 at 9:59 am
Last week, the Supreme Court issued its opinion in United States v. Jones, in which the Justices held that the government's installation of a GPS device on a target's vehicle, and its use of that device to monitor the vehicle's movements, constituted a Fourth Amendment search. The decision was surprisingly unanimous on this point, though concurring opinions by Justices Sotomayor and Alito potentially amplify the significance of the opinion by proposing alternate approaches to the larger problem of ubiquitous surveillance technologies and privacy in public. Given the majority opinion's narrow focus on the attachment of the device to the car, the larger issue of privacy in public remains unsettled.
Others have done an exemplary job of commenting on the decision. The dominant themes arising from the decision and analysis of the decision seem to be the (re?)injection of the concept of trespass into Fourth Amendment doctrine, signs of potential withering of the third party doctrine, and recognition that Fourth Amendment and privacy doctrine will soon enough be useless if they do not adequately protect against ever-evolving surveillance methods and technologies.
I'd like to focus on an aspect of the decision that has not shown up much in the analysis of the case, likely because it was never explicitly mentioned in the text. Although the word obscurity does not appear anywhere in United States v. Jones, I think the decision, particularly Justice Sotomayor's concurring opinion, supports the idea that the obscurity of our personal information is worth protecting. Read more » about Three Cheers for Obscurity, an Unspoken Beneficiary of United States v. Jones
