The Tension between Modern Technology and the Fourth Amendment to the United States Constitution

This article has been previously published in The Marin Lawyer, a publication of the Marin County Bar Association.

The Fourth Amendment to the United States Constitution protects the citizen from unreasonable searches and seizures by government agents.  The Constitution was drafted with quill pens dipped in ink and copied by hand.  The framers of the Constitution could not have conceived of modern technology when they drafted the Fourth Amendment.  The internet, social media, cell phones, and twitter have altered the perception of privacy.  There is a growing disconnect between the legal idea of a reasonable expectation of privacy for Fourth Amendment purposes and the public’s idea of privacy.  In addition modern technology allows the government to perform searches and surveillance in ways not possible even twenty years ago.  The case of United States v. Jones (2012) 132 S.Ct. 945[1] foreshadows the coming legal battles over how technology impacts the Fourth Amendment right to be free from unreasonable searches and seizures.

For decades the United States Supreme Court has primarily used a reasonable expectation of privacy standard to analyze Fourth Amendment violation questions.  If a citizen does not have a reasonable expectation of privacy in the area searched there is no Fourth Amendment violation.  United States v. Jones provides a window into the tension between modern surveillance technology and the Fourth Amendment of the Constitution.  In Jones the Supreme Court addressed the question of whether the attachment of a Global–Positioning–System (GPS) tracking device to an individual’s vehicle, and subsequent use of that device to monitor the vehicle’s movements on public streets, constituted a search or seizure within the meaning of the Fourth Amendment.

Antoine Jones owned a nightclub and was suspected of drug trafficking.  Government agents installed a Global-Positioning-System (GPS) tracking device on his car without a valid warrant.  Government agents tracked the vehicle’s movements for 28 days.  Evidence of the vehicles location was used to tie Mr. Jones to a stash house which contained $850,000 in cash, 97 kilograms of cocaine, and 1 kilogram of cocaine base.  After trial Mr. Jones was sentenced to life in prison.

The Justices unanimously ruled that this violated the Fourth Amendment.  Justice Scalia drafted the majority opinion which was joined by Justices Roberts, Thomas, Kennedy, and Sotomayor.  Justice Sotomayor drafted a concurring opinion.  Justice Alito drafted a concurring opinion which was joined by Justices Kagan, Ginsburg, and Breyer.  Although the Justices unanimously agreed that the government action violated the Fourth Amendment they disagreed as to why.  Their varying opinions illustrate a fundamental disagreement as to how the Fourth Amendment should be applied to government use of modern technology.

Justice Scalia based his decision on a government trespass theory.  He relied on case law from 1765 to support his argument that when the government commits a trespass on private property the Fourth Amendment is violated.  He explained, “[i]t is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted. Entick v. Carrington, 95 Eng. Rep. 807 (C.P. 1765), is a “case we have described as a ‘monument of English freedom’ ‘undoubtedly familiar’ to ‘every American statesman’ at the time the Constitution was adopted, and considered to be ‘the true and ultimate expression of constitutional law’ ” with regard to search and seizure.”

In his concurring opinion Justice Alito criticized the basis for Justice Scalia’s reasoning by stating “This case requires us to apply the Fourth Amendment’s prohibition of unreasonable searches and seizures to a 21st-century surveillance technique, the use of a Global Positioning System (GPS) device to monitor a vehicle’s movements for an extended period of time. Ironically, the Court has chosen to decide this case based on 18th-century tort law.”

Although he based his decision on the reasonable expectation of privacy standard Justice Alito confronted the idea that modern technology has made the application of the standard problematic in that the “test rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. Dramatic technological change may lead to periods in which popular expectations are in flux and may ultimately produce significant changes in popular attitudes. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile. And even if the public does not welcome the diminution of privacy that new technology entails, they may eventually reconcile themselves to this development as inevitable.^”

Justice Alito identifies the additional dynamic that modern technology has given the government the ability to observe more while expending fewer resources, “[i]n the pre-computer age, the greatest protections of privacy were neither constitutional nor statutory, but practical. Traditional surveillance for any extended period of time was difficult and costly and therefore rarely undertaken. The surveillance at issue in this case—constant monitoring of the location of a vehicle for four weeks—would have required a large team of agents, multiple vehicles, and perhaps aerial assistance.  Only an investigation of unusual importance could have justified such an expenditure of law enforcement resources. Devices like the one used in the present case, however, make long-term monitoring relatively easy and cheap.”

Justice Alito recognizes that the proliferation of technology that permits the monitoring of a person’s location such as GPS enabled cell phones will create a tension between a person’s desire to take advantage of these products and their desire for privacy.  He believes that “concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions.”  Legislation may be the best answer but at the current time it is not entirely clear how the Supreme Court will apply the Fourth Amendment to modern technology.

Charlie D. Dresow’s practice focuses on representing those accused of a crime.  Mr. Dresow is a Marin County Bar Association Board member, and a proud member of the Richard M. Sangster Inn of Court.  In his spare time Mr. Dresow enjoys coaching youth football, playing rugby, and reading history.  He can be reached at cdresow@gmail.com or (415) 300-7753. 

[1] All citations to United States v. Jones (2012) 132 S.Ct. 945 unless otherwise noted.