In the flurry of activity immediately preceding the close of the United States Supreme Court's term in June, the court accepted Cert on what could be a pivotal 4th Amendment privacy case: United States v. Jones. Jones presents the court with the opportunity to define the extent to which a person has an expectation of privacy with regard to their movements.
First the salient facts. Jones was the owner of a D.C. night club which was under federal investigation for suspected drug trafficking. At the conclusion of the investigation, Jones and the club's Manager, Lawrence Maynard, were indicted for conspiracy to possess and distribute cocaine. They were tried jointly and convicted.
In the course of the investigation, the FBI installed, without use of a warrant, a GPS monitoring device on Jones’ jeep which they used to track his movements, 24 hours a day, for 4 weeks. At trial, Jones argued that use of the tracking device under these circumstances violated his reasonable expectation of privacy.
Prior Supreme Court precedent (United States v. Katz, 389 U.S. 347; and United States v. Knotts, 460 U.S. 276) has established that use of a "beeper" tracking device placed on a vehicle, or within a container carried by a vehicle, does not constitute a search because a person has no reasonable expectation of privacy with respect to his movements on the public streets or highways. However, some have argued, as did Jones, that the Court in its decision in Knotts specifically left open the question of whether or not prolonged (24 hour) surveillance of any citizen, without judicial approval and oversight would be constitutional. A number of circuit courts have relatively recently had an opportunity to consider this question (in albeit circumstances significantly less than 24 hours) and have continued to find that individuals do not have a privacy interest which would protect them from such surveillance.
Enter the D.C. Circuit Court of Appeals, which ruled in Jones’ and Maynard's cases that "society recognizes Jones expectation of privacy in his movements over the course of a month as reasonable, and the use of the GPS device to monitor those movements defeated that reasonable expectation." The court then also went on to take pains to distinguish the use of GPS technology for prolonged surveillance from prolonged surveillance conducted visually without the aid of technology. We will have to wait until the next year to see if (1) the court finds that we have a reasonable expectation of privacy in our movements over a “prolonged” period, and (2) if so, whether there is any meaningful distinction between technologically assisted and unaided surveillance.
So why will the Supreme Court's consideration of this case be of interest to anyone other than criminal defense attorneys and their clients, and particularly to those of us practicing in the Information Security and Privacy realm? The court noted that "the advent of GPS technology has occasioned a heretofore unknown type of intrusion into an ordinary and hitherto [sic] private enclave." Key to the D.C. Circuit’s reasoning was its view that (GPS) technology now allows for the relatively easy collection and aggregation of discrete items of private information about an individual which when drawn together can provide an intimate picture of the subject's life that he expects no one to have..."
Thus, for the first time the Supreme Court will have the opportunity to address one of the most important problems presented by our move to an information driven society: in a world where technology allows for both greater and more specific information about us as individuals to easily be discovered, aggregated and used by others, what is the nature and extent of the legal rights, if any, to prevent or control that discovery and use?
The contours of such a right, if it exists, will not only impact issues of law enforcement, but also serve to inform and perhaps influence ongoing discussions regarding the nature and extent that publicly available, as well as privately obtained, information may be used by corporations.
Whether the Court needs to or will address these questions is unknown, but clearly this case presents the opportunity if it wishes to do so.