A few weeks ago, I presented a webinar about the Fourth Amendment in the digital age. In preparation, I tried to find out as much as I can about the different ways law enforcement uses technology in investigations and if and when those uses constitute a search under the Fourth Amendment. What I discovered, boiled down to its most basic, is that if law enforcement can do it in a low-tech way, they can do it high tech. So, for example, if an officer standing on the sidewalk could see into your backyard, then a camera placed on a pole with the same viewpoint would work just as well.
The leading case right now is United States v. Jones, the U.S. Supreme Court’s GPS case from last summer, authored by Justice Scalia. Originally, whether something constituted a search for purposes of the Fourth Amendment had been closely tied to common-law trespass and a person’s connection to property. Over the years, the property-based approach was somewhat pushed aside and the focus was on protecting people, not places. The concept “reasonable expectation of privacy” was born and had been the focus of Fourth Amendment jurisprudence. Then came Jones. Jones circles back to property and the concept of trespass. Under Jones, trespass plus an effort to obtain information is a search, warranting the protections of the Fourth Amendment.
Justices Sonia Sotomayor and Samuel Alito each wrote separate concurrences. Justice Alito was less than thrilled about the return to trespass, and Justice Sotomayor questioned how future technologies would be analyzed. She opined that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.” I think that’s the question that courts will grapple with in the future.
The idea has long been, if you do in public and we can see it, or if we can see it from a public place, then the Fourth Amendment isn’t implicated. This made me try to think of how I could live and work outside of the public eye.
To start, I would have to get rid of my Lexis account. Using the Internet to access research requires using my Internet provider. Courts have said that I voluntarily give up the websites I visit when I use my Internet provider to visit them. So I’d have to do all my research from books. Fine. I’ll go to the library. But how will I get there? Any mode of transportation — vehicle, public, bike, foot — requires me to use public roadways and sidewalks. I’ll have to build my own in-home library.
Next, the challenge is communicating with others. E-mail is out for the same reason using the Internet is out. I could write letters. But wouldn’t who I address my letters to be fair game? I trust the postman to deliver my letters, and he has to examine the envelopes in order to get them to the right place. I can’t call clients for the same reason e-mail and the Internet is out. I have to give my phone provider the telephone number in order to place the call, so every number I dial is up for grabs.
Forget about eating. I’d have to grow all of my own food in my backyard that is somehow concealed from the public eye. Heat lamps maybe?
When you start to think about your average day, you realize that you voluntarily disclose an enormous amount of information. More so now with the advent of social media where people are constantly reporting what they’re doing, where they’re doing it and posting photos and videos of them actually doing it. So I think Justice Sotomayor is right: at some point, the courts will have to reconsider the premise about what a “reasonable expectation of privacy” really is. How that will change the law is anyone’s guess.
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