The Electronic Computer Privacy Act does not specifically address new technologies, such as mobile phone geolocator data, that law enforcement officials are increasingly using to prosecute criminal defendants. As such, legal experts and law enforcement officials have waited for some judicial guidance on this increasingly complex issue. The Supreme Court has now signalled—at least by the five concurring justices—that geolocator usage raises complex privacy concerns beyond whether the government trespassed to install such a device.

On January 23, 2012, the Supreme Court found that the installation of a GPS device on a car without a warrant constituted an illegal search. U.S. v. Jones, U.S., No. 10-1249. Although law enforcement officers obtained a warrant to install a GPS tracking device, the warrant expired before the device was installed. Data collected from the device was later used as evidence to convict the defendant of federal drug offenses.

Defendant appealed, arguing that: (1) secretly tracking his movements was an unreasonable search that violated privacy interests; or (2) that the warrantless installation of the GPS device qualified as an illegal seizure that transformed the vehicle into a “GPS electronic transceiver serving the government.” The D.C. Circuit Court of Appeals overturned defendant’s conviction, concluding that the GPS device was a “dragnet” type of government surveillance that far exceeded reasonable enforcement practice because it allowed the police to discover “the totality and pattern of [Jones’] movements from place to place to place” and the whole sometimes reveals a “great deal more” than some parts. The Supreme Court did not adopt the D.C. Circuit’s approach; instead, Justice Scalia relied upon the fact that the government trespassed when installing the GPS device which rendered the installation of the device an illegal search.

In a concurring opinion, Justice Alito, joined by Justices Ginsburg, Breyer and Kagan, noted that the Supreme Court should have analyzed the propriety of the use of the GPS device “by asking whether respondent’s reasonable expectations of privacy were violated by the longterm monitoring of the movements of [his] vehicle…” Justice Alito would have applied the expectation of privacy test to avoid these legal complications, and his concurring opinion discussed the complex privacy issues that need to be considered when analyzing each form of electronic technology and government surveillance. He concluded that the use of “longer term GPS monitoring in investigations of most offences impinges on expectations of privacy … [and] the line was surely crossed before the 4 week mark.”

In a separate concurring opinion, Justice Sotomayor questioned whether it was time to “reconsider the premise that an individual has no expectation of privacy in information voluntarily disclosed to third parties.” She found that this traditional notion was “ill suited to the digital age in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.” Justice Sotomayor noted that she would not assume that “all information voluntarily disclosed to some member of the public for a limited purpose is, for reason alone, disentitled to Fourth Amendment protection.”