How to Address Standardless Discretion after Jones
New York University School of Law
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
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
Date posted: August 4, 2012 ; Last revised: October 3, 2012
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