{"id":5706,"date":"2011-07-02T12:58:48","date_gmt":"2011-06-27T11:57:29","guid":{"rendered":""},"modified":"-0001-11-30T00:00:00","modified_gmt":"2011-06-27T11:57:29","slug":"en-US","status":"publish","type":"post","link":"http:\/\/fourthamendment.com\/?p=5706","title":{"rendered":"SCOTUS cert grant in GPS case"},"content":{"rendered":"

as expected<\/a> (odds of cert grant 3-2 as of May 5th).<\/p>\n

From ScotusBlog<\/a>:<\/p>\n

Title: United States v. Jones
\nDocket: 10-1259<\/a>
\nIssue(s): 1) Whether the warrantless use of a tracking device on petitioner\u2019s vehicle to monitor its movements on public streets violated the Fourth Amendment.
\n2) Whether the government violated the respondent\u2019s Fourth Amendment rights by installing the tracking device without a valid warrant and without his consent.<\/p><\/blockquote>\n

Update:<\/strong> This will clearly be the biggest case of the 2011-12 Term, and the biggest privacy case since 1967’s Katz<\/a>. GPS planting is so easy and inexpensive now, it may be far more prevalent than we really know. How many times has the defense never been apprised?<\/p>\n

My concern is that most of the Justices are too mid-Twentieth Century for my Fourth Amendment sensibilities. Scalia showed some spark in Kyllo<\/a>, from which Kennedy dissented. But that was the home<\/em>, and that is a huge difference. In fact, some of the Justices are too Nineteenth Century for me. The oral argument<\/a> in Quon<\/a> was a semi-eyeopener as to how little they know about basic modern technology. The law clerks are young and tech-savvy enough to carry the day, but they can’t ask the questions at oral argument. Hopefully they can keep the opinions this case will produce on the straight and narrow. The D.C. Cir.’s opinion<\/a> is so strong on the one hand<\/a> that one would think it would carry the day in SCOTUS, but a Court as hostile to individual liberty as this one makes the “Nixon Court” look liberal. <\/p>\n

Remember this passage from Quon, slip op. at 10:<\/p>\n

The Court must proceed with care when considering the whole concept of privacy expectations in communications made on electronic equipment owned by a government employer. The judiciary risks error by elaborating too fully on the Fourth Amendment implications of emerging technology before its role in society has become clear. See, e.g., Olmstead v. United States, 277 U. S. 438 (1928), overruled by Katz v. United States, 389 U. S. 347, 353 (1967). In Katz, the Court relied on its own knowledge and experience to conclude that there is a reasonable expectation of privacy in a telephone booth. See id., at 360\u2013361 (Harlan, J., concurring). It is not so clear that courts at present are on so sure a ground. Prudence counsels caution before the facts in the instant case are used to establish far-reaching premises that define the existence, and extent, of privacy expectations enjoyed by employees when using employer-provided communication devices.<\/p><\/blockquote>\n

I’m not hopeful about the outcome in this case because of SCOTUS’s hierarchy of rights: Corporations over government over persons. And, since most cars come with GPS these days, can the government simply dictate that all vehicle GPS devices communicate with the government via satellite at all times?* Is that where we are headed?** If so, Big Brother can’t be far behind. Kyllo at least would prevent the Telescreen<\/a>.<\/p>\n

Somewhere, George Orwell is cackling.<\/p>\n

______<\/p>\n

*Credit Chief Justice Lippman on the New York Court of Appeals with that thought in Weaver<\/a>‘s oral argument in March 2009.
\n** Is The E-ZPass Box A Trojan Horse For Privacy Invasions?<\/a><\/p>\n","protected":false},"excerpt":{"rendered":"

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