[For the original of this post, with links, go to the ZwillGen blog]: The U.S. Supreme Court promises some interesting Fourth Amendment activity next term, having granted certiorari review in two important cases. In the first, United States v. Jones, FBI agents planted a GPS device on a car and then used it to track the position of the automobile every ten seconds for a full month, all without securing a search warrant. I helped file an amicus brief on behalf of the Electronic Frontier Foundation and the ACLU of the National Capital Area in Jones, urging the Court of Appeals for the District of Columbia to hold the search unconstitutional. It did, and that opinion is now on review. The Obama administration urged the high Court to reverse, arguing that individuals have no expectation of privacy in their movements on public streets under the 1973 case of U.S. v Knotts. In Knotts, officers used a beeper to help them figure out whether they were getting closer to or farther away from a can of drug precursor chemicals stored in a car. In the brief, we argued that Knotts didn't apply because the primitive beepers at use there were not analogous to the comprehensive surveillance information GPS technology can provide and the appellate court agreed:
“It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine.”
In granting cert, the Court added a question that had not previously been part of the case: "whether the government violated Jones' Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent." The fact that the Court added this question suggests some justices may think the installation is of constitutional importance. So even if there's no right to privacy on the streets, implanting the device on the car could violate the Fourth Amendment by interfering with the defendant's personal property. That could be a way for the Court to reject what law professor Orin Kerr has called "the mosaic view" of the Fourth Amendment -- in which courts would look to the overall invasiveness of surveillance to determine whether it invades a reasonable expectation of privacy, rather than ask whether a particular police action at a single point in time violated privacy or not -- while still keeping GPS surveillance under constitutional supervision. Regardless, civil libertarians now know two things. Location privacy's best bet right now is the Wyden/Chaffetz Geolocation Privacy and Surveillance bill. Also, if you can afford it, park your car in a private, locked garage.
The second case is Messerschmidt v. Millender, which EFF's (and my former) clients The Long Haul and East Bay Prisoner Support relied on in challenging an invasive search of the storied Long Haul infoshop located in Berkeley, California. (The court has not yet ruled in that matter). In Millender, the officers had probably cause to look for a sawed off shotgun, but put into the warrant language that purported to authorize a search for any and all firearms related materials, as well as information about the residents' affiliation with gangs. The Ninth Circuit held that there was no support for the broad language of that warrant and the search was unlawful. Moreover, the court found that it was objectively unreasonable for the officers to rely on such broad language in light of what they were supposed to be investigating. Despite this sensible constraint on boilerplate authorizations cut-and-pasted into warrants, the Supreme Court has granted cert and phrased the questions before it as (1) Whether police officers are entitled to qualified immunity when they obtained a facially valid warrant to search for firearms, firearm-related materials, and gang-related items in the residence of a gang member and felon who had threatened to kill his girlfriend and fired a sawed-off shotgun at her? (2) Whether United States v. Leon, 468 U.S. 897 (1984), and Malley v. Briggs, 475 U.S. 335 (1986), should be reconsidered or clarified? Again, it doesn't sound good for the Fourth Amendment, but Millender is important exactly because of what happened to Long Haul. In that case, University of California Police and the Federal Bureau of Investigation (FBI) alleged that a third party had misused Long Haul computers, got a warrant that purported to authorize a search of the premises "for evidence" without further limitation, and then used the warrant to search public and private rooms, secured documents, and to seize every computer in the building. Judicial officers place a lot of trust in police seeking and executing warrants and a broadly phrased warrant should not be a blank check for officers once they get on the premises.
In the tech world, the Jones case is getting a lot of attention, but Fourth Amendment scholars, practitioners and civil libertarians have a lot to think/worry about for next Court term.