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How to Address Standardless Discretion after Jones

4 Pages Posted: 4 Aug 2012 Last revised: 28 Oct 2015

Erin Murphy

New York University School of Law

Peter Swire

Georgia Institute of Technology - Scheller College of Business

Date Written: June 4, 2012

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.

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

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: https://ssrn.com/abstract=2122941 or http://dx.doi.org/10.2139/ssrn.2122941

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

Georgia Institute of Technology - Scheller College of Business ( email )

800 West Peachtree St.
Atlanta, GA 30308
United States
(404) 894-2000 (Phone)

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