Three Cheers for Obscurity, an Unspoken Beneficiary of United States v. Jones

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.

Obscurity generally refers to the inability to know or understand a person or piece of information. In a draft of a new article I have co-written with Fred Stutzman titled "The Case for Online Obscurity," we describe obscurity as follows:

Obscurity is a simple concept, reflecting a state of unknowing. But what does it mean for an individual to be obscure? Obscurity at the individual level involves two parties: the individual and the observer. For an individual to be obscure, her or his observers must not know about critical information relevant to the individual that is needed to make sense of the individual: the personal identity, social connections, or context are examples.

Without this critical information, the observers are limited in their ability to make sense of the actions and utterances of the individual. For example, if an individual gossips in the presence of the observer, the gossip is generally obscure unless the observer knows of whom the individual speaks.

Obscurity is, in many ways, a commonplace and necessary social condition that facilitates interaction. In everyday interaction, we are often practically obscure in the eyes of observers. A significant portion of our everyday interaction places us into a zone of obscurity, where our identity and personal context are unknown to those we interact with or share common space.

The doctrinal exclusion of obscurity when discussing issues of privacy in public is not new. The concept has never been the focal point of privacy jurisprudence. Instead, modern Fourth Amendment opinions have been dominated by post-Katz discussions of "reasonable expectations of privacy" and the third party doctrine. However, the concept is an inextricable part of our justification of privacy in public. It underpins the proposed rejection of concepts like the third party doctrine and what Daniel Solove has referred to as "the secrecy paradigm."

For example, Justice Sotomayor proposed that "it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties." She stated that she "would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection." Although not articulated, Sotomayor seems to want to protect the obscurity of information that, while disclosed to a small group, remains unknown and, perhaps more importantly, unlikely to be known absent some kind of activity directed towards surveillance, aggregation, or publicity.

Obscurity is also a concept implicitly protected by the so-called "mosaic theory" of the Fourth Amendment. Justice Sotomayor noted in her concurring opinion that "GPS monitoring generates a precise, comprehensive record of a person's public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." This kind of information is often known to some, disclosed in front of or in a way accessible to others, yet is likely sensitive information. Because it is not aggregated and accessible in one place, it is obscure.

Sotomayor would protect the obscurity of this information in some instances. She stated: "I would take these attributes of GPS monitoring into account when considering the existence of a reasonable societal expectation of privacy in the sum of one’s public movements. I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on."

Justice Alito's concurring opinion also tacitly vindicates the value of obscurity. Justice Alito focused on the length of monitoring, rather than the majority's focus on trespass, to find a Fourth Amendment search. Alito explicitly noted that "[i]n the pre-computer age, the greatest protections of privacy were neither constituional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken."

This recognition of the value to privacy provided by the practical difficulties in collecting and understanding information is similar to the Supreme Court's rationale in U.S. Dep't of Justice v. Reporter's Committee. In that case, the Court recognized the privacy interest in maintaining the "practical obscurity" of "rap sheets" filled with aggregated personal information that was previously only available in geographically separate locations.

Justice Alito noted that "society's expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period." The inability to continuously monitor individuals provides for obscurity. When only short intervals or single instances of activity are recorded, most of the information about our lives drifts into the ether. Consequently, one of the differences between short-term and long-term monitoring is the loss of obscurity.

Obscurity is an underrated but valid privacy interest. Many have argued that some kinds of publicly available information should be protected by privacy laws, but that argument is often met with resistance. The fight for privacy in public has so often felt like an uphill battle because it is difficult to articulate a valid privacy interest in information that others could theoretically access or surveil, but haven't. A refined concept of obscurity could further this discussion, which just received a much-needed shot in the arm.

Image credit: shoehorn99

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