Scalia and Alito Brawl Entertainingly Over Technology and Privacy

The law, lawyers, and the court.
Jan. 23 2012 6:38 PM

Alito vs. Scalia

The two conservative Supreme Court justices brawl over technology and privacy.

Garmin Nüvi 360 GPS device.
GPS technology can follow our every move. When it's done without our knowledge, is it ever constitutional?

Courtesy of Garmin.

In what is certainly the most important pronouncement about privacy, technology, and the scope of the Fourth Amendment right of the people to be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures,” the Supreme Court handed down a unanimous decision today in United States v. Jones.

Dahlia Lithwick Dahlia Lithwick

Dahlia Lithwick writes about the courts and the law for Slate. Follow her on Twitter.

But if a coherent legal rule has emerged from all this mess, I can’t for the life of me identify it. In issuing the narrowest possible decision about the most consequential technological dilemma, the court has told us only that what the police did in this one instance was an unconstitutional search. Good luck deciding what it means about your smartphone.

The case involved a suspected drug dealer, Antoine Jones, and the police decision to attach a GPS tracking device to his wife’s car, after obtaining a warrant that had expired, then tracking his every movement for 28 days. Evidence used from that surveillance led to his conviction for conspiracy to sell cocaine. The Court of Appeals for the D.C. Circuit tossed his conviction, finding that the collection of evidence violated his Fourth Amendment rights. This morning the Supreme Court agrees, although it’s not clear at all what they agreed on. The court split into three distinct camps, offering different rationales for finding that an unconstitutional search had occurred.

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Justice Antonin Scalia, backed by Chief Justice John Roberts and Justices Anthony Kennedy, Clarence Thomas, and Sonia Sotomayor, takes the narrowest tack, finding simply that the police’s act of affixing a GPS device to Jones’ car constitutes a trespass, or physical intrusion that “would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” Justice Samuel Alito, in a surprising alignment with three of the court’s liberals, objects to Scalia’s entire approach to the case as “unwise,” accusing him of relying on 18th-century trespass law to solve a 21st-century privacy problem. He faults Scalia for relying on centuries-old tort law to resolve an almost inconsequential aspect of the case (police attaching a device to the underside of a car) instead of assessing the matter in terms of the “reasonable expectation of privacy.”

Justice Sonia Sotomayor then writes, agreeing with Scalia’s trespass approach, but adding in a separate concurrence for herself alone, that actually anticipates being read by light bulb as opposed to flickering taper. Even though she’s looking forward and not backward, for Sotomayor, Scalia’s trespass-based approach is the better one: “When the Government physically invades personal property to gather information, a search occurs. The reaffirmation of that principle suffices to decide this case.”

Having said all this, Sotomayor then launches into a terrifying exposition about all the ways in which government surveillance no longer actually requires any physical intrusion, and she notes that Scalia’s majority opinion offers no future guidance for regulating such surveillance. Sotomayor cautions that new surveillance systems will fundamentally alter the relationship between government and citizens. She writes, “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.” She goes on to warn about an even more worrisome violation of privacy when one’s personal information is voluntarily disclosed to third parties, noting, “I for one doubt that people would accept without complaint the warrantless disclosure to the government of a list of every Web site they had visited in the last week, or month, or year.” Because she joins on with Scalia’s majority opinion, however, these musings are—at least for now—just high-tech musings.