On the Fourth Amendment implications of location tracking

Moderator Jameel Jaffer, an ACLU attorney, opened the first panel at the Yale Law School's Location Tracking and Biometrics conference by posing a series of questions regarding legal implications for cell phone location tracking by government: How worried should we be about proliferation of location tracking technology? In what circumstances are there Fourth Amendment implications? What are the implications of increased efficiency of electronic tracking vs. physical tracking by police agents? Does it matter if surveillance is invisible? Should it matter if government is creating a permanent record? Does it matter how it will be used, or whether surveillance is of an individual or generalized? Does the relative precision of the tracking matter? Are there greater Fourth Amendment concerns if surveillance becomes automated? If it required a physical trespass? And if there is a Fourth Amendment concern, what follows from that? What protection should kick in?

Excellent questions, all.

The first person to take a stab at answering them was David Gray, an energetic associate law prof from the University of Maryland. He lamented the uncertainty created by the US Supreme Court's odd ruling in US v. Jones, which he said "nearly" held there's a Fourth Amendment implication from GPS tracking by law enforcement. (Readers may recall that Jones held the use of a mobile tracking device was a "search" but declined to answer whether it was "reasonable" or not.) Five judges in the Jones case, according to Gray, would have held that GPS tracking violated people's reasonable expectation of privacy because of the sheer quantity of location data gathered over a 28-day period under a theory propounded by the lower court often referred to as the "mosaic theory." Under that theory, while an individual may reasonably expect that others will see them when they're out in public in any individual location, continuous tracking over time at some unspecified point accumulates to violate one's privacy.

The main opinion of the court, though, was based on a theory that police trespassed on Jones' property by physically attaching a tracker to his car, a distinction that doesn't really apply to tracking cell phones or other electronic devices.

Most people have an intuitive sense that their privacy rights should prohibit the government from constantly tracking them, said Gray, but the question becomes, is there a Fourth Amendment basis for restricting it? Law enforcement, he said, "is on a teleogical path toward a surveillance state" and the Fourth Amendment is the main bulwark pushing back against that trajectory. Gray argued that the Fourth Amendment should be be read to oppose a surveillance state for two reasons: 1) There's a basic liberty interest in not being watched all the time, and 2) surveillance limits the capacity for ethical self-exploration and development. There's a "democracy interest," he said, in opposing a surveillance state.

Gray thinks it's problematic to consider these questions on a case by case basis, as courts must do, because concerns about a surveillance state are collective. That argues, he said, for legislative solutions. We all have interest in not having surveillance state, he said, for the same reason there's a collective interest in prohibiting warrantless  physical searches and seizures. The underlying purpose of the Fourth Amendment was to place limits to unfettered access by the government to personal information. It follows, then, that we should identify technology that has the capacity for indiscriminate surveillance and bring it under Fourth Amendment control.

Priscilla Smith, a senior fellow at the Information and Society Project at Yale Law School, said the concurring opinions in Jones were interesting because of the difficulty they had in saying what was wrong with GPS tracking in public spaces. At oral arguments, the die was cast when Chief Justice John Roberts asked the state's attorney if, under their reading of the law, police could track Supreme Court justices without probable cause. Upon hearing the affirmative answer, it was obvious the court would rule against the government, she said, but they didn't quite know how.

Smith argued there is a rule to be had to answer these questions "just a heartbeat away." The court should resist the "mosaic" or aggregation theory, she said, which would present too narrow view of the justices privacy concerns and obscure original constiutional principles. There needs to be rule that's both broader and more limited than mosaic theory, she said.  Broader because the mosaic theory may not cover certain types of surveillance that could chill expression of constitutionally protected behavior. In some circumstances, even one piece of data may be intrusive to privacy, which is not only violated over time but can be implicated at any given moment (e.g., attendance at political meetings, gay bars, abortion clinics, etc.). But the standard also may need to be narrower because, as Orin Kerr and others have argued, taken to extremes the mosaic theory could prevent long-term physical surveillance by actual police officers. She encouraged attendees not to "be too lawyerly in overdetermination of terms. Think like a poet. Just because you're in public doesn't mean nothing is private."

Smith offered up a funny analogy using Star Wars characters from a forthcoming paper to point out holes in the mosaic theory: Imagine Chancellor Palpatine sets out to discredit the Jedi. He orders tracking devices placed on their vehicles that relay information back to the government and discovers intimate relationships between the characters, including loads of perhaps unflattering personal information. But there are more uses for such information than just criminal prosecution, she pointed out. Instead, Palpatine uses the  information to undermine his targets with the public and their peers, attempting to turn them against each other. All resist but one, of course – Anikin. (The analogy made me think of J. Edgar Hoover's character assassination campaign against Martin Luther King, Jr..)

Similarly, in the modern context government could use such information to undermine dissidents or political opponents, for example, by revealing trips to psychiatrist, etc.. While the mosaic theory implies privacy could only be violated over time, revealing information about just one trip to the gay bar, an abortion clinic, etc., also could violate privacy. The concurrences in Jones tellingly don't cite to the mosaic theory, she observed, though that was the basis for the lower court's holding. Justice Sonia Sotomayor, in particular, argued for a more fundamental reconsideration of the third-party rule, which holds that people have no privacy interest in information shared with a third party. Sotomayor provocatively questioned whether secrecy should be considered a prerequisite to privacy (which is a fascinating idea to consider). Justice Alito's concurrence, Smith noted, also did not cite to the mosaic theory. The best we can do for now, held Alito, is attempt to apply existing Fourth Amendment doctrine, however inadequate.

Two principles arose in the concurrences to Jones, Smith argued. One, raised  most prominently by Justice Breyer, related to the difference between human and technological surveillance, arguing that when resource constraints no longer apply to police surveillance because of technology, the Fourth Amendment must constrain them. The second theme holds that the main harm of living in surveillance society is the chilling effect on associational and expressive behavior.

Professor Susan Freiwald of the University of San Francisco posed the critical question: Post-Jones, how does the Fourth Amendment apply when there's no physical trespass? For example, when police can ask your cell-phone carrier or the OnStar device in your car to remotely turn on devices so they can be monitored, would a warrant even required? Jones left that question open, she said. (As an aside, Grits began to wonder throughout the day whether the act of sending a signal to one's property - be it a cell phone or a vehicle - may be considered a 21st century "trespass" and therefore fall under Scalia's conception in Jones.)

Freiwald suggested four factors courts should consider when determining whether electronic surveillance should have Fourth Amendment protection: When it's hidden, continuous, intrusive or indiscriminate.

Unfortunately, she said, lower courts are not yet percolating the Jones test to figure out how it should apply because of another recent SCOTUS decision, Davis v. US, which expanded good faith exceptions to the exclusionary remedy for unconstitutional police behavior. Davis created a new reason to deny suppression: When officers rely on appellate precedents that are later overturned. Davis was decided on the basis of an automobile search, determining that the search was clearly unconstitutional but should be excused and the resulting evidence not excluded because the police acted in good faith. In that case, she said, SCOTUS expressed its growing distaste for exclusionary remedy, declaring it's not a personal right. In subsequent cases, appellate courts have looked at old precedents that preceded modern technological advances to avoid suppression. She called this development "pernicious and troubling."

Courts are using broad language in Davis to get around Jones in circuits where there is no binding precedent, denying any real remedy and refusing to engage in a Fourth Amendment analysis because no remedy exists. Courts are using a "ridiculous" expansion of Davis, to avoid suppressing unconstitutionally gathered evidence. For example, on remand in Jones, the lower court said the good faith exception applied and let in the location evidence despite the high court's decision. Davis will be used to inhibit use of Jones rule beyond facts of the case for years, predicted Freiwald. She had one of her students conduct a preliminary search of cases one year after Jones for cases that cited Davis, Jones and GPS. She found 36 cases in Westlaw; 30 granted the Davis exception, six didn't; 32 denied suppression, only four were suppressed.

Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals was a delightful and affable fellow - I liked him a lot. Though he said he came "mostly to listen," he offered some probative comments on the problem of the third-party doctrine, which he called a "huge barrier" to developing a consistsent theory of privacy in the electronic age. Consider the Katz case in which SCOTUS said we have a reasonable expectation of privacy against wiretapping. The court didn't say all conversation is private, but placed particular significance on the fact that Mr. Katz closed the door to the phone booth (ask your parents) when he made his call. If the case had happened today on a cell phone, he pointed out, there'd be no door to close and the case might have been decided differently. OTOH,  SCOTUS has said information about phone numbers dialed are not private because they're shared with a third party - the phone company.

The world we live in now, he pointed out, is one where we constantly disclose information to third parties, he noted, often involuntarily. It used to be if you bought a book, what you bought was between you and the bookseller. Now if use credit card the info is sucked up by companies and sold to data aggregators and credit reporting services. Companies are beginning to use such data to target advertising specialized to individuals, he said, even on their home TV where cable-baed "micro channels" allow them to individualize ads to particular consumers.

The precedents saying we have no privacy interests in information disclosed to third parties, said Judge Kozinski, go back to the prosecution of union boss Jimmy Hoffa. Much of the evidence in that case came from information disclosed to people around him, one of whom was a spy for the government who even overheard, and reported to his superiors, information normally protected by attorney client privilege. The court basically said you have a choice in choosing your friends. Pick wrong and you're not protected. Hoffa trusted a stool pigeon, said Kozinski. He could have asked the guy to go away when talking to his attorney, but he didn't. Hoffa made a reasoned, if flawed, choice, Kozinski argued. Problem is, much of what we disclose to third parties today does not result from a reasoned choice. Most of us have no idea what we're disclosing nor an appreciation for the implications for such third party uses.

Kozinski said, "I think it's sort of creepy to have stuff funneled to me based on my purchases or have people relate to me based on how I Google," etc., "even if government is not involved." But there are problems with banning such information sharing. Say legislation passed requiring an explicit waiver for information sharing. There are real, monetary costs involved. Credit cards are cheaper because they make so much money selling your information. Google is free because Adwords works well at individualizing ads. He asked himself: Would I be willing to pay $10 per month to avoid it? $100? $200? How much? We have gotten used to getting stuff on the cheap by selling our privacy. It's a bargain we didn't start out making, he said. It was made for us. But now it's going to be hard to roll back. So long as we're willing to sell our privacy, it will be hard to complain if the government gets the same info we're willing to sell so cheaply to third parties.

Kozinski argued that government traditionally has a legal right to the same information as the private sector. For example, say police suspect a supermarket is front for illegal drug operation. They want to come in and walk up and down the aisles looking for illegal activities. Since anyone can walk into a grocery store, he argued, they don't need a warrant. So why can't they purchase the same information as marketing companies?

Jaffer suggested that there may be a relatively easy doctrinal solution. Courts could just hold that disclosure to third party doesn't defeat constitutional privacy interests. Kozinski, though, asked why the government couldn't just buy the information like companies do?

Gray responded that the problem isn't the tech but state agency. Companies become a de facto state agent, he argued, and courts  should erect a legal wall between their public and private functions. Private companies' activities may raise privacy concerns, he argued, but not Fourth Amendment concerns.

Freiwald pointed out that, before Katz, wiretapping by private interests was "rampant." The court case ended the practice for government (without a warrant) but it wasn't until the following year that Congress banned it for private citizens. She argued that example showed that government can be prohibited in engaging in activities Congress has not prohibited for the private sector. I was glad she raised that example because otherwise I thought Judge Kozinski made a pretty compelling argument.