Legislating Privacy After US v Jones

Legislating Privacy after U.S. v. Jones: Can Congress Limit Government Use of New Surveillance Technologies?

The Supreme Court’s decision in U.S. v. Jones, a case that addressed the use of global positioning system (GPS) tracking devices for law enforcement purposes, is hot privacy news. Almost immediately, the decision sparked numerous and sometimes conflicting comments. The issue here is whether the decision will prompt Congress to consider legislation and what that legislation might look like.

The majority opinion by Justice Antonin Scalia used a property-based approach to conclude that attaching a GPS device to a car and using the GPS to monitor the car’s movements on public streets constitutes a search or seizure within the meaning of the Fourth Amendment to the Constitution. The narrow basis for the decision turned on the fact that the government physically occupied private property (the car) for the purpose of obtaining information.

A concurring opinion by Justice Samuel Alito and joined by three of his colleagues reached the same outcome, but Alito wanted to determine whether the car owner’s reasonable expectations of privacy were violated by the long-term monitoring of his car. Essentially, Alito thought that the majority’s property analysis was not scalable to present day surveillance issues and that an expectation of privacy standard would reach the same result without the baggage of the property-based approach.

Justice Sonia Sotomayor joined the majority opinion, but she also filed a concurring opinion. She observed that physical intrusion is not always necessary for surveillance (e.g., by tracking a cell phone) and argued that how surveillance is done may affect an expectation of privacy. So in her opinion Sotomayor asked whether people reasonably expect that their movements will be recorded in a manner that allows the government to ascertain their political and religious beliefs, sexual habits, and more. She even questioned the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. That was the holding in United States v. Miller, 425 U. S. 435, 443 (1976), a case increasingly criticized by privacy advocates as inconsistent with life today.

Former Justice John Marshall Harlan originally proposed the reasonable expectation test in a concurring opinion in Katz v. United States, 389 U. S. 347 (1967). Harlan’s test has two parts. First, did a person exhibited an actual (subjective) expectation of privacy and, second, is that expectation one that society is prepared to recognize as “reasonable.” The reasonable expectation standard has grown in importance over the years since Katz. Many criticize it because of its vagueness and the ability of expectations to change with technology and other developments. Alito noted some of the problems with the expectation standard, including a degree of circularity and confusion by judges who apply their own expectations rather than those of a “reasonable person.” Alito suggested rather directly that legislation might be the best way to resolve the uncertainties of the expectation standard.

With this as background, my starting point is Alito’s invitation for a legislative solution. Arguably, Congress could promptly and efficiently set surveillance standards by statute. It would take the courts years to do the same through litigation. What might legislation look like?

Before I answer that question, I note that there is precedent of sorts. When the Court in Katz held that wiretapping was a search, it presented the same need for rules and procedures governing wiretapping now that the Fourth Amendment applied. What is noteworthy here is that Katz overruled Olmstead v. United States, 277 U.S. 438 (1928), a previous decision that held that wiretapping without judicial approval did not violate the Fourth Amendment. Following Olmstead, Congress tried for forty years to enact a wiretapping law but was unable to reach consensus.

The politics of wiretapping essentially pitted the police (who benefitted from the regulation-less status quo) against those who wanted more controls over wiretapping. Katz changed the political dynamic. Now both sides had a substantial interest in defining rules. That allowed Congress to pass Title III of the Omnibus Crime Control and Safe Streets Act of 1968 (also known as the Wiretap Act) defining the conditions and circumstances of communications interceptions. For a nice summary of the protracted legislative wars over wiretapping, see chapter 5 of Legislating Privacy by Priscilla M. Regan. Location privacy by the private sector has already been the subject of proposed legislation in the current session of Congress, but Alito’s invitation opens a whole new front by adding public sector activities to the mix.

The first question for GPS legislation is the scope of the bill. What exactly should the bill cover? A narrow bill addressing use of a GPS by police would be easier to draft and enact, but it would not help much. After all, as both Sotomayor and Alito pointed out, many other surveillance techniques present the same issues. Should a bill also regulate the use of cameras on the roads? What about cameras now used elsewhere, such as in garages, stores, schools, and public buildings? Other surveillance technologies include satellites, aerial pictometry and drones. What do we do in the near future when all cars will likely have transponders and broadcast their location for traffic control and other purposes? Cars equipped with OnStar already have transponders, making this a live issue. We also have highway toll records of all sorts.

We haven’t exhausted this scope issue yet. We could regulate face recognition technology for its location-tracking capabilities. We could seek to regulate location tracking by any means rather than naming specific technologies, including old-fashioned shoe leather police surveillance. The concerns expressed by at least five members of the Court extended to surveillance in general and not just to GPS tracking.

In fact, location tracking is already in play in proposals to reform the Electronic Communications Privacy Act (ECPA). For more, see the Digital Due Process coalition. One of the coalition’s proposed standards for ECPA would regulate the availability of location information from cell phones by requiring warrants based on probable cause. Not surprisingly, law enforcement has not embraced the idea, and changes to ECPA do not seem likely in the near future.

If we take the easier path by regulating GPS only, we run the risk of duplicating the experience of ECPA, a law that regulated new technology a bit ahead of its time. ECPA started to become obsolete before the ink dried, and, in 25 years since its passage, the law has not had a major overhaul. If a law tightly regulates use of GPS, the police will switch to unregulated methods. Then there’s the problem that separate laws for each surveillance technology would likely have different standards and create all kinds of inconsistencies.

However, taking a broad bite at the issue will produce much more substantial opposition. Regulate the use of satellites and drones if you like, but expect a visit from national defense and national security agencies demanding a full exemption. Regulate cameras, but expect opposition from camera manufacturers, from cities making money from red light and speed cameras, and from others who rely on the existing policy void to use cameras as they see fit. Regulate car transponders, but expect auto manufacturers, car rental companies, and traffic regulators to speak up. Regulate location information in general, but expect opposition from all of the above and from police everywhere.

We are not done with scope issues. Who will the law regulate? A federal law can tell federal agencies and federal law enforcement how to operate. However, directing state (and local) governments in the same way is not a given. If there were a Supreme Court ruling that a particular procedure were constitutionally required, then the requirement would apply to the states as well. For example, the requirement for a Miranda warning for criminal suspects is constitutionally based and applies to the states. However, the federal wiretapping statute gets its jurisdiction from congressional power to regulate interstate commerce and not directly from the Fourth Amendment.

Depending on what technology the bill regulates, there may or may not be an interstate commerce activity that can be regulated. A GPS device uses federal satellites, which might provide federal jurisdiction. If local police conduct surveillance by using state highway toll facilities on local roads, by using a license plate reader, by erecting cameras located in local communities, or by following individuals on the streets, a federal jurisdictional hook might not be so easy to find. It’s beyond the scope of this post to delve into complex jurisdictional issues, but here’s a link to a paper by the American Prosecutors Research Institute that considers some of the state-federal jurisdictional aspects of ECPA. It is not simple.

Even if federal jurisdiction over state activities can be found, it is not necessarily easy to solve the political problems that the exercise of that jurisdiction creates. Imagine how a Member of Congress will react to a bill knowing that every local police officer in his state or district opposes the proposal.

So far, we’ve covered two scope issues, both of which present difficult substantive and political choices. We haven’t reached the policy questions of how to regulate surveillance activities covered by the new rules. Both Alito and Sotomayor raised the length of surveillance and the severity of the offense as possible factors for determining whether an expectation of privacy has been breached. It is not hard to envision high-profile crimes (think child abduction and terrorism) inducing elected officials to vote for broad exceptions to procedural requirements. Once you start down the exception route, other issue activists (drunk driving, domestic violence, hate crimes) will want one, too.

Further, every surveillance activity may not require a probable cause warrant. ECPA – and the USA PATRIOT Act – have a variety of different standards and procedures governing government access to records, not all of which call for probable cause. Some existing standards are so weak as to be nearly meaningless. A surveillance law passed through the political process may result in a similarly broad spectrum of rules depending on the scope of the surveillance regulatory bill.

Then there is the question of what to do when the police fail to comply with a requirement for judicial oversight or other procedure. Given the political controversies surrounding the existing exclusionary rule – itself a welter of complex rules and exceptions – it cannot be assumed that the remedy for breach of legislated surveillance procedures will be exclusion of evidence.

We have by no means exhausted the issues that a surveillance regulatory bill would raise, but it should be clear that a legislative solution will not be simple. It is possible that the same dynamic that produced federal wiretapping legislation immediately following Katz could recur today. If the police feel that the uncertainty of the Jones decision makes it worthwhile cutting a deal with the civil liberties community, then the political problems may find a resolution. However, it is possible that law enforcement may see the risk as greater than the reward. Civil libertarians may prefer the courts to legislation if the political process is likely to produce a mushy, exception-laden bill. Congress may prefer to avoid the issue and its difficult votes.

Just to make it all harder, it may accomplish little to control public sector use of surveillance while similar private sector activities remain largely unrestricted.

Fasten your seatbelts on this issue. It’s going to be a long and bumpy ride.
About the Author

Robert Gellman, JD is a privacy and information policy consultant in Washington, D.C. He served for 17 years on the staff of a subcommittee in the House of Representatives. He can be reached at bob [at] bobgellman. [dot] com or visit his website at http://www.bobgellman.com/. See also his article Location Privacy: Is Privacy in Public a Contradiction in Terms?

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