Cato@Liberty: “A Response to Orin Kerr on GPS Tracking”

Cato@Liberty: A Response to Orin Kerr on GPS Tracking by Julian Sanchez:

Orin Kerr—easily one of our most lucid thinkers when it comes to applying the Fourth Amendment to new technologies—argues at Volokh Conspiracy that, while it’s a hard call whether the installation of a GPS tracking device to a vehicle counts as a Fourth Amendment “search” or “seizure,” the Supreme Court should not treat the use of such devices as a search when it decides United States v. Antoine Jones later this term. Rather, he argues, the Court should hew to a bright line test that makes monitoring “inside” protected spaces a “search” requiring a warrant, while “outside” monitoring—as, for example, of a car traveling on public roads—is always permitted, regardless of the technological means by which that monitoring is carried out, or how extensive that monitoring is in scope or duration. This is in line with Kerr’s reasoning in a thoughtful and important article about the application of the Fourth Amendment to the Internet, which I’ve already written about in this space.