After United States v. Jones, After the Fourth Amendment Third Party Doctrine
Stephen E. Henderson
University of Oklahoma College of Law
January 1, 2013
North Carolina Journal of Law and Technology, Forthcoming
United States v. Jones, in which the Court unanimously held that month-long Global Positioning System (GPS) tracking of a vehicle constitutes a Fourth Amendment search, did not in itself tell us too much. The government took an egregious position, and therefore lost nine to zero. We now apply a resurrected trespass-based conception of search, but we know extremely little about how to do so and what results it will alter. We know five Justices believe long-term location tracking is typically a search because it invades a reasonable, seemingly empirical, expectation of privacy. And we know one Justice is willing to reconsider the entire third party doctrine, which holds that one typically retains no Fourth Amendment expectation of privacy in information conveyed to another.
But when we take a broader view, it is not merely one Justice who will not apply the third party doctrine in a strong form, and thus I have previously written the doctrine’s obituary. Jones fits nicely within a string of cases in which the Court is cautiously developing new standards of Fourth Amendment protections, rather than declaring generally applicable categorical rules. Given that it was a grand pronouncement of an allegedly categorical rule in United States v. Miller that has caused much of the trouble, this strikes me as a sensible way to proceed. I expect the road will not be smooth, but we are used to zigs and zags in the Fourth Amendment. It is hard to imagine anything less when the High Court is attempting to ferret out what is reasonable, which requires balancing private and law enforcement interests, and when technology, policing, crime, and social norms are constantly in flux.
Much of the ground has been plowed before, both by myself and others dating back many years, which calls for brevity. Indeed, Jones will surely spark a new crop of Fourth Amendment papers, the authors of some of which will read what has gone before and some of whom will not. But Jones provides a nice hinge around which to discuss where the Fourth Amendment has been and where it might be going – and more generally where citizens’ protections against unreasonable searches and seizures, which do not depend solely upon the Fourth Amendment, might be going. Here I will content myself with that relatively high level, and like many others I will begin in other fora to drill down into specifics of how the Fourth Amendment should apply to the particular techniques of location tracking.
Number of Pages in PDF File: 18
Keywords: Fourth Amendment, US v. Jones, GPS tracking, third party doctrine, location tracking, location surveillance, expectation of privacy, search, information privacy
JEL Classification: K14, K19working papers series
Date posted: January 1, 2013
© 2013 Social Science Electronic Publishing, Inc. All Rights Reserved.
This page was processed by apollo5 in 1.172 seconds