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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

103 J. Crim. L. & Criminology 803 (2013)

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 is for good reason, invidious reason, or no reason, the Fourth Amendment is not implicated. Fortunately, the Supreme Court unanimously rejected that position. The Court did not, however, resolve what restriction or restraint the Fourth Amendment places upon location surveillance, reflecting 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, technologically enhanced location surveillance, and 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: 36

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, K19

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Date posted: January 1, 2013 ; Last revised: November 7, 2015

Suggested Citation

Henderson, Stephen E., Real-time and Historic Location Surveillance after United States v. Jones: An Administrable, Mildly Mosaic Approach (January 1, 2013). 103 J. Crim. L. & Criminology 803 (2013). Available at SSRN: https://ssrn.com/abstract=2195289 or http://dx.doi.org/10.2139/ssrn.2195289

Contact Information

Stephen E. Henderson (Contact Author)
University of Oklahoma College of Law ( email )
300 Timberdell Road
Norman, OK 73019
United States
405.325.7127 (Phone)
HOME PAGE: http://www.law.ou.edu/content/henderson-stephen-e
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