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http://ssrn.com/abstract=2122941
 
 

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How to Address Standardless Discretion after Jones


Erin Murphy


New York University School of Law

Peter Swire


Nancy J. and Lawrence P. Huang Professor of Law and Ethics, Scheller College of Business, Georgia Institute of Technology

June 4, 2012

Ohio State Public Law Working Paper No. 177

Abstract:     
The Supreme Court held in United States v. Jones that prolonged GPS tracking infringes upon a Fourth Amendment interest, but left for another day whether that means that a warrant is required for all such surveillance activity. Building on Supreme Court precedent that directly addresses the problem of "standardless and unconstrained discretion," we propose that courts test the constitutionality of police action of this kind by examining the adequacy of procedural safeguards and actual police compliance therewith. Accordingly, in a range of settings involving new technologies, the state would need to craft reasonable safeguards against standardless discretion, and then comply with those safeguards in order for state action to be deemed constitutional.

Number of Pages in PDF File: 4

Keywords: Jones, GPS tracking, location tracking, surveillance, standardless discretion

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Date posted: August 4, 2012 ; Last revised: October 3, 2012

Suggested Citation

Murphy, Erin and Swire, Peter, How to Address Standardless Discretion after Jones (June 4, 2012). Ohio State Public Law Working Paper No. 177. Available at SSRN: http://ssrn.com/abstract=2122941 or http://dx.doi.org/10.2139/ssrn.2122941

Contact Information

Erin Elizabeth Murphy (Contact Author)
New York University School of Law ( email )
40 Washington Square South
New York, NY 10012
United States
212-998-6672 (Phone)
Peter Swire
Nancy J. and Lawrence P. Huang Professor of Law and Ethics, Scheller College of Business, Georgia Institute of Technology ( email )
225 North Ave
Atlanta, GA 30332
(404) 894-2000 (Phone)
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