Big Brother May Be Watching You But With Greater Restrictions

     This week the U.S. Supreme Court issued a unanimous ruling, with two separate concurring opinions, in the case of U.S. v. Jones in one of the first cases to explore privacy rights regarding digital police investigation techniques.  In Jones, the government obtained a search warrant allowing it to install a global-positioning-satellite (GPS) tracking device on Jones’s vehicle.  The warrant allowed the use of the GPS device within 10 days in the District of Columbia.  The device was installed on the 11th day and in Maryland.

      The government subsequently indicted Jones and others, on drug trafficking conspiracy charges.  The District Court suppressed the data obtained from the GPS device when it was parked at Jones’ residence but allowed the admission of the other data holding that  Jones had no reasonably expectations of privacy when the vehicle was on public streets.

            The D.C. District Court, an appeals court, reversed Jones’ conviction holding that the evidence obtained by the warrantless use of the GPS devices violated Mr. Jones’ Fourth Amendment rights.

            The U.S. Supreme Court held that, in this case, the attachment of the GPS device to the subject vehicle, which was used to monitor the vehicles movement and whereabouts, constituted a search under the Fourth Amendment.  The Fourth Amendment protects the “right of people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures."

            Five of the nine justices held that the Government’s physical intrusion on an “effect”, the placing of the GPS on the undercarriage of the vehicle, constituted, in this case, a warrantless use of the GPS device in violation of Jones' Fourth Amendment rights.

            The justices, who voted unanimously on the issue of unreasonable searches, split 5-4 on the reasoning.  The minority wanted a broader holding declaring that installing the GPS device not only trespassed on private property but also violated Jones’ reasonable expectation of privacy.

            Justia Sotomayor, in writing a separate, minority concurring opinion addressed the privacy issue by stating that awareness that the Government may be watching chills association and expressive freedoms.  Her opinion went on to state: “Disclosed in GPS data . . .  will be trips the indisputably private nature of which takes little imagination to conjure:  trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip clubs, the criminal defense attorneys, the by-the-hour motel, the union meetings, the mosque, synagogue or church, the gay bar and on and on." This, she declared, may alter the relationship between citizen and government in a way that is inimical to democratic society.

     Perhaps a troubling position taken by the Government, at oral argument in November, must have been the statement that it would allow for the attaching of such tracking devices to be placed on the justices own vehicles without obtaining a warrant.

            The relatively narrow holding by the Court will more than likely leave opened more issues for further argument and deliberation.

Richard P. Hastings is a Connecticut personal injury lawyer at Hastings, Cohan & Walsh, LLP, with offices throughout the state.  A graduate of Fordham Law School, he has been named a New England Super Lawyer and is the author of the books: "The Crash Course on Child Injury Claims"; "The Crash Course on Personal Injury Claims in Connecticut" and "The Crash Course on Motorcycle Accidents."  He has also co-authored the best selling book "Wolf in Sheep's Clothing- What Your Insurance Company Doesn't Want You to Know and Won't Tell You Until It's Too Late!" He can be reached at 1(888)CTLAW-00 or by visiting www.hcwlaw.com.