Earlier this year, the Supreme Court decided United States v. Jonesa closely-watched Fourth Amendment case holding in that the government had performed an illegal search when it tracked a suspect’s car after attaching a GPS tracking unit without a valid warrant.  Though some civil libertarians responded to the decision calling it a victory against the government’s ability to conduct invasive surveillance, we are just now seeing how the unique facts of Jones are being applied to increasingly more invasive surveillance.  The initial indications are that Jones may actually do little to protect individuals from the government’s ability to track our movements using precise and ubiquitous technologies, and may even have given lower courts an apparent justification to uphold warrantless location tracking.

To understand why a superficial victory in Jones may turn out to be a loss for privacy advocates in the long run, one has to understand the facts at issue in Jones.  Antoine Jones was a person of interest in a joint narcotics investigation being conducted by the FBI and a Metropolitan (D.C.) Police Department task force.  Based on validly obtained evidence against Jones, the government was able to obtain a warrant to place a GPS tracking unit on a car registered to Jones’s wife, so long as the device was attached within 10 days and while the car was present in the District of Columbia.  Law enforcement subsequently attached the device to the car, but did so on the 11th day and while the car was in a public parking lot in Maryland.  The attachment was therefore made without a valid warrant authorizing the search, and thus Jones was able to challenge the evidence obtained from tracking the whereabouts of the car over a 4-week period.

Since Jones was a case about when law enforcement can use technology to gain information about suspects as they travel on public roadways, it would be reasonable to assume that the Court would have applied the line of cases beginning with Katz (a listening device attached to the outside of a public phone booth is a search) and extending to Knotts and Caro (the government does not perform a search when it uses an electronic “beeper” to assist investigators in following a vehicle on public roadways).  Instead, in an opinion written by Justice Scalia, the Court cited first to an English case from 1765, and later to Olmstead, a 1928 case overruled in Katz, to establish that the correct analytical framework in which to decide the case was the common law trespass theory of a search.

“[O]ur law holds the property of every man so sacred, that no man can set his foot upon his neighbour’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbour’s ground, he must justify it by law.” Enticksupra, at 817.

The text of the Fourth Amendment reflects its close connection to property, since otherwise it would have referred simply to “the right of the people to be secure against unreasonable searches and seizures”; the phrase “in their persons, houses, papers, and effects” would have been superfluous.

The Court thereby frees itself from any need to assess whether the government conducted an unreasonable search when it tracked the vehicle’s movements for four days without an authorizing warrant.  Because the government trespassed upon and seized (through denial of exclusive use) the defendant’s property without a warrant, the defendant’s Fourth Amendments rights were violated.  In response to Justice Sotomayor’s concurrence expressing concern about the narrowness of the opinion, Justice Scalia points out that he does not intend to eliminate the Katz “reasonable expectation of privacy” test, only to ensure that the traditional trespassory test is an individual’s first line of defense against unreasonable searches.

By leaving the Katz analysis for another day, the Court has allowed the individual circuit courts to decide for themselves whether there is a reasonable, societally-recognized privacy interest in data that precisely identifies a person’s location.  This decision is a prerequisite to the determination of whether law enforcement officials are required to obtain a warrant based on probable cause before accessing such data.  Because the technology used in the Jones case is nearly obsolete in a world in which we all voluntarily carry around similar GPS tracking technology in our pockets or purses, the Supreme Court failed to answer the aspect of the privacy question that would provide any ongoing guidance to the lower courts.

The recent Sixth Circuit decision in United States v. Skinner provides an example of how lower courts are deciding cases within the still undefined zone of access to locational data without a physical trespass.  In Skinner, the government was able to connect a particular cell phone number (not an identifiable person) to an ongoing drug distribution investigation, and proceeded without a warrant to track the location data emanating from the pay-as-you-go cell phone connected with that number.   They were thus able to identify the defendant as he crossed the country in an RV, and eventually stopped and seized the vehicle loaded with over 1,000 pounds of marijuana.  Applying the case law which Jones rejected, the court determined that the suspect could not have a reasonable expectation of privacy in this data, because the data was emanating from a tool of his illegal activity.

There is no Fourth Amendment violation because Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal. The law cannot be that a criminal is entitled to rely on the expected untrackability of his tools. Otherwise, dogs could not be used to track a fugitive if the fugitive did not know that the dog hounds had his scent. A getaway car could not be identified and followed based on the license plate number if the driver reasonably thought he had gotten away unseen. The recent nature of cell phone location technology does not change this. If it did, then technology would help criminals but not the police. It follows that Skinner had no expectation of privacy in the context of this case, just as the driver of a getaway car has no expectation of privacy in the particular combination of colors of the car’s paint.

The Court basically concludes that because Skinner was in fact violating the law, society is not prepared to recognize his privacy interest in the tools of his trade.  But the police did not know that Skinner was violating the law until after they tracked his location.  In fact, they didn’t even know who he was until he was stopped and arrested halfway through his cross-country drug run.  The data emanating from Skinner’s phone is the same data emanating from every cell phone in use by every American.  If the government can assert that no violation has occurred because the cell phone was a tool of criminal activity, the government can track every phone in the country, and only bring that tracking to light when they use that data to acquire other evidence of criminality.  Surely such tracking should violate even the most government-friendly definition of citizens’ “reasonable expectation of privacy.”

The limitations on when the government can intercept data transmitted wirelessly are relevant to more than just GPS and cell phone location data.  In a recent Ninth Circuit case (U.S. v. Ahrndt, 475 Fed. Appx. 656), the appeals court remanded to the district court in light of Jones to decide whether the government had violated a reasonable expectation of privacy when it accessed computer files containing child pornography by connecting to a suspect’s home wireless network.  If the defendant has (even unknowingly) made his network accessible from outside his home, is the government then free to access it because no physical trespass is required?  This question was answered in the affirmative in Olmstead, cited approvingly by Justice Scalia in Jones, but would seem contrary to Kyllo, another Scalia opinion centering on the sanctity of the home against electronic intrusion.  The Sixth Circuit’s Skinner analysis would hold that the computer was a tool of illegality, and therefore the defendant must accept that it was accessible by law enforcement.  Even without overruling the Katz line of precedent, by reviving the trespass model of Fourth Amendment law, the Court has raised more questions than it has answered.

Given the questionable post hoc rationalization in the Skinner case, that case would appear to be ripe for review, and would provide  an appropriate vehicle for the Supreme Court to answer the questions it left open in Jones.  As noted in a New York Times editorial, the concurring opinions in Jones suggest that at least some Justices, those who are more willing to apply the Constitution’s guarantees with an understanding that the Framer’s could not have envisioned GPS data emanating from cell phones, may be willing to hold unequivocally that Americans have a reasonable expectation of privacy in wirelessly transmitted data.  It may even be possible for the government to obtain the same information from cell phone carriers without itself engaging in the tracking.  To protect that data, the Court would need to recognize a right to informational privacy contrary to the general “third party doctrine” that considers personal data held by cell phone companies to lack any expectation of privacy.

Whatever vehicle brings the issue to the high court, the Supreme Court needs to step up and define the Fourth Amendment protections applicable to wireless data and location information.  Technology has moved on from the GPS tracking units at issue in Jones.  American life now entails the creation and transmission of huge amounts of data, much of it created without the users’ affirmative intent or knowledge, and much of it intended to be available only to a limited audience for a limited purpose.  If the mere existence and transmission of data can signal a lack of a reasonable expectation of privacy, the only way to demonstrate a subjective interest in privacy will be to go off the grid.  There has to be a better way, and the path to the answers begins with the Supreme Court recognizing that privacy means more than physical property.  Jones answered the wrong questions; hopefully new cases can ask the right ones.