Excerpt - Georgetown Undergraduate Law Review

Volume I, Issue I Spring 2014

Georgetown University

Undergraduate Law Review

Georgetown University Undergraduate Law Review

Volume I, Issue ISpring 2014

Editorial Board and StaffEditor-in-ChiefAdrienne Jackson

Managing EditorMorgan Birck

Assistant EditorsFahad Abdul

William BakerEmma Rose Bienvenu

Rebecca KuangSonia Okolie

Communications DirectorEmma Rose Bienvenu

Layout EditorWilliam Baker

Faculty AdvisorHonorable Thomas L. Ambro

Judge, Third Circuit, U.S. Court of Appeals

Privacy in the Modern Age: Where Does the Supreme Court Stand?

Madeline MooreCollege of Arts & Sciences, 2016AbstractTwo recent Supreme Court cases—Maryland v. King (2013) and United States v. Jones (2012)—provide insight into each Justices’ conception of privacy and its re-lationship with modern age technology. While Maryland v. King demonstrates Justice Kennedy and Scalia’s respective conceptions of physical privacy, the author notes key differences in their application. In essence, Kennedy considers the differ-ing degrees of physical intrusions into privacy, while Scalia deems any intrusion as extreme. United States v. Jones reinforces this analysis, as Justice Scalia forcefully ad-vances this attitude towards issues of privacy. Looking to the other members of the Supreme Court, United States v. Jones displays Justice Sotomayor’s and Alito’s more abstract interpretations of the Fourth Amendment. In examining the future test case of United States v. Muhtorov, the paper briefly notes that the Supreme Court will most likely rule evidence collected under the NSA program as impermissible, as its collection violates the Fourth Amendment in a five-four decision: Sotomayor, Alito, Kagan, Ginsberg, and Breyer against, versus Kennedy, Scalia, Thomas, and Roberts in favor.

Georgetown University Undergraduate Law Review, Volume I, Issue I 9


Privacy in the Modern Age: Where Does the Supreme Court Stand? Introduction

On November 18, 2013, the Supreme

Court refused to hear an appeal from The

Electronic Privacy Information Center, an

advocacy group, which argued that a Foreign

Intelligence Surveillance Court inappropriately

authorized NSA metadata collection. Turned

over by companies like Verizon, Facebook, and

Google, these electronic records held informa-

tion on nearly every telephone call made to and

from the United States over the past five years. While it did not include the locations or con-

tent of these calls, this metadata contained their

times, numbers, and length.1

None of the Jus-

tices commented on their decision to decline,

and it remains to be seen when they will reach

an important decision in the national debate

over privacy and security. To better understand

the Justices’ current interpretations of privacy,

this paper examines two recent Supreme Court

rulings: Maryland v. King, 2013, and United States v. Jones, 2012.

2

Both cases concern the

relationship between privacy and technology in

the modern age, and this paper analyzes their

context, the Court’s majority ruling, and any

concurring or dissenting opinions. With this in-

sight into the Justices’ perspectives on privacy,

their views on the Fourth Amendment will be

briefly set against the most likely test case for the NSA’s warrantless surveillance program—

United States v. Muhtorov—which recently

began making its way through the US courts.3

1 Bill Mears, Supreme Court Allows NSA to Con-tinue Looking at Telephone Records for Now, CNN (Nov. 18, 2013, 10:34 AM), http://www.cnn.com/2013/11/18/politics/supreme-court-nsa-phone-records/2 Maryland v. King, 000 U.S. 12–207, 1, 1-18 (2012); United States v. Jones, 000 U.S. 10–1259 U.S. 1,1-14 (2011) 3 Charlie Savage, Warrantless Surveillance Challenged by Defendant, NEW YORK TIMES York Times. ( Jan. 29, 2014, 6:43 PM), http://www.nytimes.com/2014/01/30/us/warrantless-surveillance-chal-lenged-by-defendant.html?_r=0.

Before looking at Maryland v. King,

it is important to understand Katz v. United States, 1967. In this case, respondent Katz used

a public payphone to conduct illegal gambling

activity. Law enforcement collected the evi-

dence from a recording device on the outside

of the payphone which led to his conviction.

Overturning this conviction, the Supreme

Court expanded Fourth Amendment protec-

tions to include spaces in which individuals

have a “reasonable expectation of privacy.”4

In King and Jones, Justices Kennedy, Scalia,

Sotomayor, and Alito consistently reference

Katz and its influence on subsequent case law.5

It forms the basis of their arguments, and they

use it in different ways, revealing their atti-

tudes and prioritizations regarding issues of

privacy. With these in mind, this paper argues

that if the current Supreme Court were to

accept United States v. Muhtorov in the future,

they would rule against its recent activity in a

five-four decision: Sotomayor, Alito, Kagan, Breyer, and Ginsberg opposed, Kennedy, Scal-

ia, Thomas, and Roberts in favor.

Maryland v. King: The Case

In the case Maryland v. King, the Su-

preme Court examined the use of DNA tech-

nology in law enforcement. Officers arrested respondent King on charges of assault and pro-

cessed him in Maryland. There, officers used a cheek swab during the booking procedure

to retrieve a DNA sample. Analysis matched

this sample to an unsolved rape from 2003

by using the Combined DNA Index System

(CODIS) which “connects DNA laboratories

at the local, state, and national level.” 6

CODIS

is “authorized by Congress and supervised by

the Federal Bureau of Investigation,”7

and it

4 Katz v. United States, 389 U.S. 347 (1967)5 Maryland v. King, 000 U.S. 12–207, 1,1-28 (2012); United States v. Jones, 000 U.S. 10–1259 U.S. 1,1-14 (2011)6 Maryland v. King, 000 U.S. 12–207, 1,2 (2012) 7 Id. at 2.


Privacy in the Modern Age: Where Does the Supreme Court Stand?contains both an Unsolved Crimes Collection,

in which King’s DNA match was discovered,

and a Convict and Arrestee Collection. King

was convicted for the rape, but the Maryland

Court of Appeals overturned the conviction on

the grounds that the cheek swab violated his

Fourth Amendment rights. In its decision, the

Supreme Court ruled that such DNA collection

is constitutional, upholding King’s conviction.8

Maryland v. King: Majority Ruling

Justice Kennedy authored the major-

ity opinion of the Court in Maryland v. King,

holding that DNA collection in this context

was a reasonable search, acceptable under the

Fourth Amendment. Kennedy makes three

key arguments in support of this ruling: (1)

The Government’s interest in King’s DNA

was greater than King’s expectation of pri-

vacy, (2) the Government’s use of the DNA

was explicitly for identification purposes, and (3) use of DNA technology is consistent with

routine booking procedures.9 The specifics of these three points reveal important elements

of Kennedy’s attitude toward privacy, which

proves more utilitarian than those expressed in

Justice Scalia’s dissention, authored on behalf

of himself and Justices Ginsberg, Sotomayor,

and Kagan.

To assert his first point, Justice Kenne-

dy establishes both the insignificance of DNA collection as an invasion of privacy and the

gravity of the Government’s interest in such

information. He acknowledges that “using a

buccal swab on the inner tissues of a person’s

cheek…to obtain DNA samples”10 is a search,

and any invasion into the human body intrudes

upon “cherished personal security,” and should

be “subject to constitutional scrutiny.”11 Plac-

ing the swab under this scrutiny, he finds that 8 Id. at 28. 9 Id. at 2. 10 Id. at 7. 11 Id. at 7.

it is “negligible,” a trait “of central relevance

to determining reasonableness.”12 Kennedy

provides invasive surgery or the inspection of

an arrestee’s home as examples of searches

that he considers greater intrusions, continu-

ing that the swab “is a minimal one,” which

does not “increase the indignity already atten-

dant to normal incidents of arrest.”13 Indeed,

he argues that a reasonable person in police

custody should have “diminished” expectations

of privacy, because they have been “arrested

on probable cause for a dangerous offense that

may require detention before trial.”14 Here,

Kennedy draws a distinct line between the ex-

pectations of such a person and those of “oth-

erwise law-abiding citizens,” for example, a

motorist stopped at a checkpoint or a politician

tested for drug use.15

Having proved the insignificance of a cheek swab, Kennedy presents the much

graver government interests involved in DNA

collection. DNA information is crucial to (1)

identifying the detainee and his or her crim-

inal history, (2) allowing law enforcement to

make safety decisions about their detention,

(3) allowing law enforcement to evaluate the

likelihood of attempted escape, (4) determining

bail (the threat that the detainee poses to the

public), and (5) potentially proving a convict-

ed person’s innocence.16 He stresses that it is

a common occurrence that “people detained

for minor offenses can turn out to be the most

devious and dangerous criminals.”17 For Ken-

nedy, “there can be little reason to question”

these promotions of “legitimate governmental

interests”18 which far outweigh the intrusion of

a cheek swab “in the balance of reasonableness

12 Id. at 8. 13 Id. at 26. 14 Id. at 25. 15 Id. at 25. 16 Id. at 12-17. 17 Id. at 12. 18 Id. at 10.


Privacy in the Modern Age: Where Does the Supreme Court Stand? required by the Fourth Amendment.”19

The Justice maintains that officers analyze DNA for “the sole purpose of generat-ing a unique identifying number against which future samples may be matched.”20 However, he also emphasizes the importance of knowing “the type of person” detained, which allows law enforcement to “make critical choices.”21 In this way, Justice Kennedy gives “identity” a broad definition:

An individual’s identity is more than just his name or Social Security num-ber, and the government’s interest in identification goes beyond ensuring that the proper name is typed on the indict-ment. Identity has never been consid-ered limited to the name on the arrest-ee’s birth certificate. In fact, a name is of little value compared to the real interest in identification at stake when an individual is brought into custody. 22

This makes “identification” an umbrella term for Kennedy, which is important to remember when considering his statement regarding DNA collection: “No purpose other than identifica-tion is permissible.”23

Finally, Justice Kennedy argues that DNA collection is not significantly different than other booking procedures. In the past, these have included photography, the Bertil-lon system of body measurements, and finger printing technology. According to Kennedy, these “derive from different origins and have different constitutional justifications than, say, the search of a place.”24 A unique DNA iden-tification number has the same function as a

19 Id. at 23. 20 Id. at 27. 21 Id. at 14. 22 Id. at 12. 23 Id. at 5. 24 Id. at 2.

fingerprint, and therefore has the same Fourth Amendment standing. Both occur only after “probable cause exists to remove an individual from the normal channels of society and hold him in legal custody,”25 neither is subject to officer bias, and DNA laboratories adhere to federal quality standards. The only differences between the two are “the unparalleled accuracy DNA provides,” and the more “rapid analysis” available from fingerprints.26 According to Kennedy, speed and accuracy are negligible factors in considering constitutionality, and running an arrestee’s DNA through the CO-DIS Unsolved Crimes Collection is consistent with running fingerprints through the FBI’s Integrated Automated Fingerprint Identifica-tion System (IAFIS). 27 In this respect, neither booking procedure is “different than matching an arrestee’s face to a wanted poster of a previ-ously unidentified suspect.”28

Kennedy’s three arguments for main-taining King’s conviction reveal two important aspects of his general interpretation of the Fourth Amendment. First, he maintains a very corporeal notion of privacy that focuses on the physical activities which constitute searches and seizures. He does not discuss the meta-physical invasion of privacy that occurs when the Government extracts an unwilling indi-vidual’s unique genetic information. Second, Kennedy dismisses a “per se” rule of reason-ableness: privacy violations are not intrinsi-cally unconstitutional and cannot be assigned a blanket Fourth Amendment standing.29 They should always be considered in the context of the benefits provided, suggesting that as long as the benefits to the government are greater than the violation, any violation is permissi-ble—no matter how extreme. Whether there is

25 Id. at 11. 26 Id. at 13. 27 Id. at 13-15. 28 Id. at 13.29 Id. at 10.


Privacy in the Modern Age: Where Does the Supreme Court Stand?a limit to this utilitarian attitude towards priva-cy remains to be seen, but Justice Kennedy has certainly not positioned himself as an advocate of privacy for privacy’s sake.

Maryland v. King: Dissenting Opinion

Justice Scalia authored a dissention in Maryland v. King on behalf of himself and Justices Ginsberg, Sotomayor, and Kagan. His counter-argument centers on three things: (1) A rejection of Kennedy’s reasonableness test, (2) a detailed correction of Kennedy’s assumptions about the way in which the current CODIS system operates, and (3) a strong warning against the potential of the Court’s ruling to legalize future suspicionless searches.30 These arguments reveal a stricter interpretation of the Fourth Amendment than Justice Kennedy’s, but a similarly corporeal attitude toward priva-cy, which will also be reflected in his majority opinion in United States v. Jones.

Justice Scalia does not subscribe to Justice Kennedy’s utilitarian reasonableness test, which suggests that a search is justifiable if the interests of the government are greater than the minimal intrusion of privacy. Instead, he defends freedom from suspicionless search-es because a person cannot be searched for evidence of a crime without any basis for be-lieving that they are guilty or possess incrimi-nating evidence. “That prohibition,” he states, “is categorical and without exception; it lies at the very heart of the Fourth Amendment.”31 While Justice Kennedy asserts that a person’s expectation of privacy is greatly reduced upon arrest, Justice Scalia emphasizes that only weapons, easily destroyable evidence, or evidence related to the crime of arrest can be “objects of a search incident to arrest.”32 DNA evidence does not fall into any of these catego-ries, and Scalia argues that the primary purpose 30 Id. at 1(Scalia, J., dissenting). 31 Id.at 1 (Scalia, J., dissenting). 32 Id.at 4 (Scalia, J., dissenting).

of DNA collection is nothing other than “sim-ply discovering evidence of criminal wrong-doing.”33 He criticizes Kennedy for indulging in a “free-form reasonableness inquiry,” which is only appropriate if “a governmental purpose aside from crime-solving is at stake.”34 While Kennedy focuses on the minimal invasion of a cheek swab, Scalia insists, “no matter the de-gree of invasiveness, suspicionless searches are never allowed if their principle end is ordinary crime solving.”35 For Scalia, the collection of King’s DNA was a suspicionless search for ev-idence of a crime other than the one for which he was arrested, making its conduct for ordi-nary law-enforcement purposes in violation of the Fourth Amendment.

Scalia attempts to disprove Kennedy’s argument regarding the identifying purpose of the search by elaborating on the detailed operations of CODIS. According to Scalia, “the CODIS system works by checking to see whether any of the samples in the Unsolved Crimes Collection match any of the samples in the Convict and Arrestee Collection.”36 By running King’s DNA through the Unsolved Crimes Collection, law enforcement could not have been attempting identification. All the Unsolved Crimes Collection had to offer was a unique DNA number—not a name or other “identifying” information.37 As Scalia argues, “unless what one means by “identifying” someone is “searching for evidence that he has committed crimes unrelated to the crime of his arrest,” DNA collection is a suspicionless search.38 Further, if “identifying” someone signifies finding out what unsolved crimes he has committed, then “identification is indistin-guishable from the ordinary law enforcement

33 Id.at 4 (Scalia, J., dissenting). 34 Id.at 3 (Scalia, J., dissenting).35 Id. at 5(Scalia, J., dissenting).36 Id. at 8 (Scalia, J., dissenting).37 Id. at 8 (Scalia, J., dissenting).38 Id. at 5 (Scalia, J., dissenting).


Privacy in the Modern Age: Where Does the Supreme Court Stand? aims that have never been thought to justify a suspicionless search.”39 CODIS identified the sample from the previously unidentified rapist by its association with King; King was not identified by the DNA sample in CODIS. And since the actual DNA analysis results came back weeks after King’s arrest, Kenne-dy’s “legitimate governmental interests” in the DNA—numbers two through four—were not fulfilled.40

Scalia warns against future suspi-cionless searches by drawing attention to the very existence of CODIS. There is no need for “a separate, wholly redundant DNA con-firmation of the same information” when fingerprint identification is so efficient.41 The real value of the DNA system in law enforce-ment is the ability to solve unsolved crimes, which is a purpose other than identification for which DNA collection in standard book-ing procedures would be considered a Fourth Amendment violation. Resolving old cases, says Scalia, is “a noble objective,” but it is not as important in America as “the protection of our people from suspicionless law-enforcement searches.”42 He predicts that as a consequence of the Court’s majority opinion, the DNA of everyone arrested—for whatever reason—will be legally entered into a national database:

Today’s judgment will, to be sure, have the beneficial effect of solving more crimes; then again, so would the taking of DNA samples from anyone who flies on an air- plane... applies for a driver’s license, or attends a public school. Per-haps the construction of such a genetic

39 Id. at 5 (Scalia, J., dissenting).40 Maryland v. King, 000 U.S. 12–207 1, 1-18 (2012). These were (2) allowing law enforcement to make safety decisions about their detention, (3) allowing law enforcement to evaluate the likelihood of attempted escape, and (4) determining bail.41 Id. at 17 (2012) (Scalia, J., dissenting). 42 Id. at 17 (Scalia, J., dissenting).

panopticon is wise. But I doubt that the proud men who wrote the charter of our liberties would have been so eager to open their mouths for royal inspec-tion.43

This hypothetical scenario reveals Jus-tice Scalia’s fierce prioritization of the Fourth Amendment. He rejects the idea that one can incriminate himself through his own DNA as it is property irrelevant to a current arrest and redundant to fingerprint identification. He sees a slippery slope toward national information aggregation, stored and used toward future conviction. While he rejects almost every aspect of Kennedy’s argument, his imagery of the founding fathers opening their mouths for cheek swabbing reflects a similar preoccupa-tion with privacy in physical terms.44 Unlike Kennedy, Scalia views any physical intrusion as grave; he asks: “why are the ‘privacy related concerns’ not also ‘weighty’ when an intrusion into the body is at stake?”45 Ultimately, Scalia’s black-and-white perception of privacy clashes with Kennedy’s sliding scale—where the de-gree of physical intrusion measures the degree of privacy intrusion. In spite of this, one must note that both interpretations initially begin with a corporeal view of privacy, a perspective that will be fully realized in United States v. Jones.

United States v. Jones: The Case

In the second privacy related case of United States v. Jones, the U.S. government in-vestigated respondent Jones for suspected drug trafficking by obtaining a search warrant to install a GPS tracking device on Jones’ wife’s Jeep. While the search warrant was limited to ten days and within the District of Columbia, 43 Id. at 18 (Scalia, J., dissenting). 44 Maryland v. King, 12–207 U.S. 1, 18 (2012) (Scalia, J., dissenting); Maryland v. King, 12–207 U.S. 1, 26 (2012) (majority opinion) 45 Id. at 4 (Scalia, J., dissenting).


Privacy in the Modern Age: Where Does the Supreme Court Stand?law enforcement placed the device on the elev-enth day in Maryland. As a result, the place-ment of the device and its information collec-tion over the following four-week period were warrantless. This information linked Jones to a conspirator’s stash house which contained enough cash and cocaine to convict Jones on multiple counts, including conspiracy to dis-tribute and possession with intent to distribute illegal narcotics. While Jones filed a motion to suppress the GPS evidence, the District Court only granted it in part by suppressing the data collected while the Jeep was parked at Jones’ residence.46 The District Court admitted the remaining data on the grounds that “a person travelling in an automobile on public thorough-fares has no reasonable expectation of privacy in his movements from one place to another.”47 The D.C. Circuit Court then reversed Jones’ conviction, and the Supreme Court upheld this ruling; both concluded that the GPS data col-lection violated the Fourth Amendment.

United States v. Jones: Majority Opinion

Justice Scalia authored the opinion of the Court in United States v. Jones on behalf of himself and Justices Kennedy, Thomas, and Roberts. Because of its simple physical ele-ment, he discusses the irrelevance of a “reason-able expectation of privacy” test in this case.48 While Katz established that “property rights are not the sole measure of Fourth Amendment violations,” Scalia emphasized that this idea did not replace the Amendment’s standard trespassory test.49 In this case, the Government physically intruded on Jones’ car, considered an “effect,” by placing a GPS tracking device on its undercarriage. This allows for a fairly simple assessment of constitutionality, because it makes a reasonableness test unnecessary—46 United States v. Jones, 000 U.S. 10–1259 U.S. 1,1 (2011)47 Id. at 2. 48 Id. at 5 (majority opinion). 49 Id. at 6 (majority opinion).

the Government engaged in an actual mate-rial intrusion. Repeatedly emphasizing Katz’ redundancy in this case, Scalia writes that it “added to, not substituted for, the common-law trespassory test”—it did not “narrow” or “erode” the Fourth Amendment’s scope.50

In contrast with Jones’ situation, Scalia provides another case of location monitoring: United States v. Karo.51 Because respondent Karo accepted a container with a secret “beep-er” already intact, the Supreme Court found he was “not entitled to object to the beeper’s presence, even though it was used to monitor the container’s location.” 52 Scalia mentions that Jones, who possessed the Jeep before the Government inserted the device, “is on much different footing.”53 In doing so, Scalia suc-cessfully evades the question of whether the presence of tracking technology in a piece of property (like a phone) at the time one takes possession of it is an acceptance of the subse-quent use of that technology by a third party. In addition, Scalia reaffirms his purely physical attitude toward privacy by offering a hypo-thetical “traditional surveillance” of Jones that “would have required a large team of agents, multiple vehicles, and perhaps aerial assis-tance,” as “our cases suggest that such visual observation is constitutionally permissible.”54 However, as soon as the Government trespass-es upon Jones’ car, it has violates the Fourth Amendment. Scalia cedes that “it may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy.”55 However, he continues by arguing that “the present case does not require us to answer that

50 Id. at 8 (majority opinion). 51 United States v. Karo, 468 U.S. 705 (1984). 52 United States v. Jones, 000 U.S. 10–1259 U.S. 1,9 (2011)53 Id. at 9 (majority opinion). 54 Id. at 11-12 (majority opinion). 55 Id. at 11 (majority opinion).


Privacy in the Modern Age: Where Does the Supreme Court Stand? question,” evading any principle of privacy other than physical protection against intru-sion.

United States v. Jones: First Concurrence

Justice Sotomayor concurs with Jus-tice Scalia that for this case, a reaffirmation of the Fourth Amendment protection against trespassory searches suffices to overturn Jones’ conviction.56 She also warns that Justice Alito’s approach will discount the relevance of the physical intrusion on Jones’ Jeep, and focus only on the Katz “reasonable expectation of privacy” test, which “erodes that longstanding protection for privacy expectations inherent in items of property that people possess or con-trol.”57 Unlike Scalia, Sotomayor accepts the need to address the electronic use of the GPS beyond its physical placement on the Jeep. She recognizes that “physical intrusion is now unnecessary to many forms of surveillance,” and that in such cases, “the majority opinion’s trespassory test may provide little guidance.”58

In order to offer more substantial guidance for future cases involving electron-ic surveillance methods, Justice Sotomayor describes: (1) the dangers of those methods, (2) the ways in which they can change societal expectations, and (3) the ways in which those expectations could be used to shape Fourth Amendment jurisprudence.59 She points out the connection between a person’s public and pri-vate life. While a singular action taken in pub-lic becomes public information, the aggrega-tion and analysis of all of these actions reveal private information not necessarily appropriate to the public sphere. Indeed, “GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, 56 Id. at 1-14 (Sotomayer, J., concurring). 57 Id. at 2 (Sotomayer, J., concurring). 58 Id. at 2 (Sotomayer, J., concurring).59 Id. at 1-6 (Sotomayer, J., concurring).

professional, religious, and sexual associa-tions.” 60 Since the Government can cheaply store and mine the data indefinitely, this wealth of detail is subject to abuse. Because GPS monitoring “proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices,” which are “limited po-lice resources and community hostility.”61 Such unrestricted power has enormous ramifications:

Awareness that the Government may be watching chills associational and ex-pressive freedoms... GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may “al-ter the relationship between citizen and government in a way that is inimical to democratic society.” 62

Regardless of these “chilling” affects, society would know and understand that it is being monitored and tracked. Sotomayor cedes that “perhaps... some people may find the ‘tradeoff’ of privacy for convenience ‘worthwhile,’ or come to accept this ‘diminu-tion of privacy’ as ‘inevitable.’”63 She is quite skeptical of this idea however. She offers that there does indeed exist “a reasonable socie-tal expectation of privacy in the sum of one’s public movements.”64 While some people may have made this tradeoff, Sotomayor doubts the existence of a societal expectation that one’s actions “will be recorded and aggregated in a manner that enables the Government to ascer-tain, more or less at will, their political and re-ligious beliefs, sexual habits, and so on.”65 She

60 Id. at 3 (Sotomayer, J., concurring).61 Id. at 3 (Sotomayer, J., concurring).62 Id. at 3 (Sotomayer, J., concurring).63 Id. at 5 (Sotomayer, J., concurring).64 Id. at 4 (Sotomayer, J., concurring).65 Id. at 4 (Sotomayer, J., concurring).


Privacy in the Modern Age: Where Does the Supreme Court Stand?suggests that this be taken into consideration by the Katz test. Sotomayor references Katz to empha-size that “what a person seeks to preserve as private, even in an area accessible to the pub-lic, may be constitutionally protected.”66 She proposes that today, people relinquish personal information to third parties, but still seek to preserve it as private. The two are no longer mutually exclusive, given that in the “digital age,” it is necessary to release information in order to carry out “mundane tasks.”67 Thus, Sotomayor demonstrates that “it may be neces-sary to reconsider the premise that an individ-ual has no reasonable expectation of privacy in information voluntarily disclosed to third par-ties.”68 This is the difference between secrecy and privacy. While one’s name, age, address, etc. are not “secret” and will be voluntarily offered to some third parties, they are still “private” and should be protected.69 According to Sotomayor, this kind of information “can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy.”70 She continues: “I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.”71

These arguments mark Sotomayor’s departure from Justice Scalia’s and Kennedy’s preoccupation with physical privacy. Recog-nizing that nonphysical violations are equally grave, she offers a serious reconsideration of the current legal interpretation of privacy in the digital age. Unlike Scalia or Kennedy, if the Government had not physically trespassed on Jones’ Jeep, Sotomayor would still have over-

66 Id. at 6 (Sotomayer, J., concurring).67 Id. at 5 (Sotomayer, J., concurring).68 Id. at 5 (Sotomayer, J., concurring).69 Id. at 6 (Sotomayer, J., concurring).70 Id. at 6 (Sotomayer, J., concurring).71 Id. at 6 (Sotomayer, J., concurring).

turned his conviction.72 She recognizes that “technological advances... affect the Katz test by shaping the evolution of societal privacy expectations.”73 She gives legal credence to the power of societal assumptions, which not only include the protection of privacy by and from the Government, but also an individual obli-gation to release information to third parties.74 Following Sotomayor’s reasoning, a “volun-tary” release of information to third parties is really a socially obligatory one, and therefore should be protected under the Fourth Amend-ment. Just like Scalia, however, Sotomayor evades an actual resolution of such questions in this case, because “the Government’s physi-cal intrusion on Jones’ Jeep supplies a narrow-er basis for decision.” 75

United States v. Jones: Second Concurrence

Like Sotomayor, Justice Alito stress-es the importance of the nonphysical action involved in GPS surveillance, rather than the physical trespass. He offers his concurrence on behalf of himself and Justices Kagan, Ginsberg, and Breyer. He clearly separates the surveillance into two actions, writing:

The Court’s reasoning largely disre-gards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great sig-nificance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation).76

He dismisses the trespassory test as outdated by referencing recent case law, which understands the Fourth Amendment as pro-72 Id. at 1-14 (Sotomayer, J., concurring).73 Id. at 3 (Sotomayer, J., concurring).74 Id. at 5 (Sotomayer, J., concurring).75 Id. at 6 (Sotomayer, J., concurring).76 Id. at 7 (Alito, J., concurring).


Privacy in the Modern Age: Where Does the Supreme Court Stand? hibiting “every unjustifiable intrusion by the government upon the privacy of the individu-al,”77 rather than hinging on “the presence or absence of a physical intrusion into any given enclosure.”78 He argues that today’s invasions, while not resembling “the direct and obvious methods of oppression” that were detested by the founders, are categorically the same.79 Fur-ther, he emphasizes the sublimation of property rights as the sole interest controlling against search and seizure. They are now “but one ele-ment in determining whether the expectations of privacy are legitimate.”80

Alito lists four other objections to the Court’s trespassory approach in Jones. First, like Sotomayor, he points out that should a trespass become unnecessary for conducting GPS surveillance, for example if the Jeep had a built-in GPS, then the Court’s ruling would not provide protection.81 Second, the Court’s ruling will result in incongruous results; if law enforcement tracks a car for a very short period of time using an attached GPS, the Fourth Amendment applies.82 If they track the same car for an extended period of time with no physical intrusion, the Fourth Amendment does not apply.83 Third, the ruling protects Jones as the owner of the car. Had he not been the tech-nical owner, than the trespass upon the Jeep would not have been considered an intrusion into his privacy. Fourth, he describes how the trespassory rule provides only an outdated in-terpretation of the Fourth Amendment in cases involving unwanted electronic contact with computer systems, some courts having held that “even the transmission of electrons that occurs when a communication is sent from one

77 Id. at 4 (Alito, J., concurring).78 Id. at 5 (Alito, J., concurring).79 Id. at 5 (Alito, J., concurring).80 Id. at 5 (Alito, J., concurring).81 Id. at 2-3 (Alito, J., concurring).82 Id. at 5 (Alito, J., concurring).83 Id. at 5 (Alito, J., concurring).

computer to another is enough.” 84

While Sotomayor offered guidance in terms of what could be considered modern so-cietal expectations of privacy, Alito argues that today, there can be no standard expectations, because they are “in flux.”85 For this reason, he delegates some of the responsibility in priva-cy matters to the legislative branch, which he argues is better “situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a compre-hensive way.”86 Thus, his defense of the Fourth Amendment is less physically oriented than Kennedy’s or Scalia’s, but also less vehement. His engagement with it is not as protective as the others, and he deems it a more appropriate subject for congress to tackle. Unlike the other Jones opinions, in which Katz is fundamental, Alito questions the validity of Katz. He argues that its key flaw is that it “rests on the assump-tion that this hypothetical reasonable person has a well-developed and stable set of privacy expectations.”87 He seems to suggest that no such standard, reasonable person exists, at least at present, and so no standard ruling can exist either.

Conclusion

King shows us both Justice Kennedy’s and Scalia’s very physical view of privacy, and Jones especially reveals Scalia’s evasion of any other attitude. On the other hand, Jones displays Justice Sotomayor’s and Alito’s more abstract interpretations of the Fourth Amend-ment, which recognize modern, nonphysical privacy issues. Looking at the future test case of United States v. Muhtorov,88 issues of

84 Id. at 9 (Alito, J., concurring).85 Id. at 10 (Alito, J., concurring).86 Id. at 13 (Alito, J., concurring).87 Id. at 10 (Alito, J., concurring).88 United States v. Muhtorov, No. 12-cr-00033-JLK 1 (D. Colo. Crim. R. 1.1. (A), filed Sept. 21, 2012)


Privacy in the Modern Age: Where Does the Supreme Court Stand?standing will no longer present an issue as the Justice Department notified the respondent of evidence collected under the NSA program.89 Because the NSA did not physically intrude on the physical property of Muhtorov’s cell phone or Verizon’s physical property, but instead re-ceived metadata records from Verizon without trespass, it is reasonable to expect that Justices Kennedy and Scalia will find this evidence permissible under the constitution. In contrast, Justices Sotomayor and Alito will not allow the evidence to be admitted as its collection con-stituted a violation of the Fourth Amendment. They may justify this with an examination of a reasonable expectation of privacy, not of one’s individual public actions, but in the sum of those actions, aggregated and analyzed.

Accordingly, the Justices in concur-rence with Sotomayor and Alito on Jones will likely concur with them on the NSA ruling—Kagan, Ginsberg, and Breyer. Those in concur-rence with both Scalia on Jones and Kennedy on King, Thomas and Roberts, will concur with them on the possible test case of United States v. Muhtorov. Therefore, if the current Supreme Court hears United States v. Muhtor-ov, it will most likely rule evidence collected under the NSA program as impermissible as its collection violated the Fourth Amendment in a five-four decision: Sotomayor, Alito, Kagan, Ginsberg, and Breyer versus Kennedy, Scalia, Thomas, and Roberts.

This conclusion comes with some reservations, unique to each Justice. For Ken-nedy, it is possible that he would rule against the surveillance methods. His opinion on the King case was specific to a criminal issue, and metadata collected by the NSA pertains to any citizen, not only those violating the law. Therefore, he may be more sympathetic to their privacy. Similarly, Scalia could also be more sympathetic as he is concerned with the 89 SAVAGE, supra note 3.

potential “panopticon” of DNA information.90 Perhaps he would also find such a panopticon of cell phone records troubling. Alito’s poten-tial ruling against the United States depends on his concession that the Katz test can indeed be used to evaluate a common set of privacy expectation in today’s rapidly evolving society. These are all significant “ifs,” but if United States v. Muhtorov is heard by the Supreme Court, their views on privacy point to a defeat for the United States and the NSA’s warrant-less wiretapping program.

90 Maryland v. King, 000 U.S 12–207 1, 18 (2012) (Scalia, J., dissenting)