Friday, October 9, 2015

Fourth Amendment in the age of surveillance

The Fourth Amendment has been under a massive attack in the post-911 age where the privacy of the U.S. citizens has been held to be secondary to public safety and counter-terrorism efforts. The unprecedented technological advances have made it a lot more possible than one could imagine. Surveillance, wiretapping, tracking devices, and more and more technological means of monitoring human activities are entering the landscape, prompting judges to look outside the box in analyzing the Fourth Amendment challenges. The determination whether a government action is in violation of the Fourth Amendment is a two-tiered analysis, 1) whether the challenged action by government is a search/seizure, 2) whether it is reasonable. The larger question of course is how much privacy can we legitimately expect in this world where all our actions, whether it is at home, at work or in the streets, are tracked by the government. We are being tracked and monitored when we browse on the internet, go shopping, eat dinner with our family, and go on vacations. All the credit cards and other plastics we carry have encoded chips with our personal information. Every activity we engage in is highly monitored. Our identity, our daily lives, our 'personal' information is no longer private, but public information, widely accessible to everyone, specifically the government.

Because the 'search' as a concept no longer has the traditional meaning, the judges have tried to delineate the contours of the new Fourth Amendment limitations. Significantly, in 2001 in Kyllo v. United States, 533 U.S. 27, the Rehnquist Court held that the use of a thermal-imaging device to track the heat emitting from the suspect's home was a 'search' within the Fourth Amendment that required a warrant. Despite the fact the device was placed in the public vantage point and was only tracking the heat not human activity emitting from home, it was rightfully considered a 'search.' It was very interesting, how the justices divided in a 5-4 opinion: Scalia was joined by Souter, Thomas, Ginsburg and Breyer for majority, while Stevens dissented with Rehnquist, O'Connor and Kennedy. Scalia urged that there was no difference between 'off-the-wall' and 'through-the-wall' technology, since both intruded upon the privacy of the home.

Flash forward to 2011, Scalia delivered the opinion of the Court in U.S. v. Jones, 132 S. Ct. 945, where the Court held that use of a GPS-tracking device on a vehicle  similar to a thermal-imaging device in Kyllo constituted a search within the Fourth Amendment that required a warrant. In fact, this was an easier case for the Court because the device was actually installed on the vehicle unlike the thermal-imaging device that was monitoring the home of Kyllo from the public space. Consequently, the Court held that this type of an encroachment would have been "considered a search within the meaning of the Amendment at the time it was adopted." Even the originalists, who tend to resort to the 'original' meaning  and purpose of the Constitution would agree with that. The Court hooked on the common-law trespass jurisprudence of the Fourth Amendment prior to the Katz holding (Katz v. United States 389 U.S. 347) to dispense with the argument by Government that Jones did not have "reasonable expectation of privacy" under the circumstances. The Court made it clear, what was objectionable was that the Government "physically occupied private property" for the purpose of obtaining information and that the Katz holding did not substitute but only supplemented the common-law trespass theory of Fourth Amendment protections.

In light of U.S. v. Jones the Court has recently held in Grady v. North Carolina, 575 U.S. __ (2015), No. 14-593 that the satellite-based monitoring of a registered sex offender was a search within the meaning of the Fourth Amendment and has to be reasonable. In that case North Carolina had demanded to install a tracking device on Grady, a convicted sex offender, without his consent to monitor his activities for the rest of his life. The Court easily dispensed with the unsupported position of the Government that this was not a search, but remanded it for further proceedings whether this could be found reasonable.

It seems, there are two tracks the U.S. Supreme Court has been following in grappling with these cases. Common-law trespass arguments that prohibit 'physical' intrusion by government into a protected area, and the 'reasonable expectation of privacy' arguments formulated by Katz. It is a flexible and useful approach. However, it lends uncertainty to the Fourth Amendment jurisprudence, because it leaves much room for inconsistent opinions by judges below and lack of confidence in how the U.S. Supreme Court will decide the next case. In this age, it would be vastly critical to have a certain amount of certainty when it comes to our privacy rights and the degree to which the Government can intrude upon our lives.

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