Real-time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic Approach
Stephen E. Henderson
University of Oklahoma College of Law
January 1, 2013
Journal of Criminal Law and Criminology, Forthcoming
In United States v. Jones, the government took an extreme position: so far as the federal Constitution is concerned, law enforcement can surreptitiously electronically track the movements of any American over the course of an entire month without cause or restraint. According to the government, whether the surveillance be for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, that position was unanimously rejected by the Supreme Court. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting a proper judicial restraint in this nuanced and difficult area. Using the newly enacted American Bar Association (ABA) Standards on Law Enforcement Access to Third Party Records, this article develops a regulatory regime for law enforcement visual surveillance, law enforcement technologically-enhanced location surveillance, and law enforcement access to historic location records (e.g., cell site data). The proposal handles the administrative difficulties inherent in so-called "mosaic" approaches via a generally permissive regime regulated through an abuse standard. Ideally, such a proposal would be legislatively enacted with the backdrop of constitutional judicial review, and the article comments upon the need for constructive dialogue and initiative in that process by the law enforcement community, a view influenced by six years serving as Reporter for the ABA Standards.
Number of Pages in PDF File: 30
Keywords: Fourth Amendment, US v. Jones, GPS tracking, third party doctrine, location tracking, location surveillance, expectation of privacy, search, information privacy, stakeout
JEL Classification: K14, K19working papers series
Date posted: January 1, 2013 ; Last revised: March 17, 2013
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