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Translating the 4th Amendment into a new technological age: United States v. Jones

Neal Katyal, Former Acting Solicitor General of the United States in conversation with Jeffrey Rosen of the National Constitution Center. Created by Aspen Institute.

Video transcript

i'm jeffrey rosen the president of the national constitution center and i'm sitting here with neil cat yowl former acting Solicitor General of the United States we're here to talk about the Supreme Court privacy & Technology now there are certain cases where the justices have acted rather boldly and with surprising unanimity to try to translate the Fourth Amendment into a new technological age the first of those was the Jones case involving GPS tracking tell us about that case first of all what were the facts so the facts and Jones were particularly hard for the federal government to justify but basically they had someone they suspected of being a drug dealer and so they did what you often do in that circumstance which is you seek a warrant so that you can search them and seize them and things like that and in this case they just wanted to follow this man Jones's Jeep around so they sought a warrant they applied for the word and got it in one jurisdiction that turns out Jones was in another they also got it for a certain period of days and they didn't actually attach any sort of GPS tracking device until after the warrant had expired so basically you know the government had goofed up at various points in the case early on but nonetheless it came to the US Supreme Court and the question was was it okay for law enforcement officials to attach a GPS tracker device to this guy's jeep without a warrant because the government officer couldn't rely on their warrant it was out of time and in the wrong jurisdiction and the federal government said look we don't need a warrant I mean you know we tried to get one but we didn't need one because Jones's Jeep is in plain view everyone could see it he's just driving around the streets and undoubtedly every justice on the Supreme Court the government said would agree that we could pay a cup to go and follow Jones around for 24 hours a day so what's the difference between having a cop do it or a digital cop to it in the form of this little GPS tracker device everything's done in the plain view it's not as if Jones was driving on private rose and private property or something like that in which the GPS tracker was surveilling him so the federal government thought hey we got a pretty good argument everyone agrees that we could do this in real space without technology so why can't we do it in a cyber space now the Supreme Court unanimously rejected that argument but they did so for different reasons tell us first of all what Justice Antonin Scalia joined by four other justices help so Justice Scalia said you know what I don't want to get into this whole question about cyber surveillance because here really what's going on is you the government attached a physical device to someone's property to this to mr. Jones's Jeep and by doing so you invaded his property interest you trespassed on them and Justice Scalia went back and looked at the common law tradition of trespass and said it bears a lot of relation to the Fourth Amendment and that basically what the government did was invade a property right of mr. Jones now the problem with that argument is that the government often invades property rights in all sorts of circumstances I mean for example the government chalks tires all the time to figure out whether or not someone has overstayed their two hour meter limit that is them physically touching someone else's property and would invade the same property right that Justice Scalia was asserting and for that reason I think the other opinions in the case ultimately will be more persuasive and long-lasting so tell us about those other opinions Justice Samuel Alito as you said was unpersuaded by Justice Scalia's property based analysis why was he am persuaded and what was his alternative well I think Justice Alito recognized that what really was going on is not some sort of property rights violation what's really going on is the notion that this was mass surveillance and could be adopted on a grand scale and this reached its culmination in another opinion by justice Sotomayor which made this point very explicitly but at the end of the day when someone says they're concerned about GPS tracker devices on someone's Jeep I don't think they're concerned about the limited two seconds it took to attach that device on to the Jeep rather they're concerned about the fact that this tracker is now broadcasting all sorts of information about them where they go did they go to a drugstore did they go to some anonymous lover's house who knows there's so much information that the government could it get access to through the use of these trackers and that's what five justices on the court well several just on the court were concerned with that's exactly right as you say Justice Alito said that because of the amount of information that month long tracking could reveal we do have an expectation of privacy in the whole of our movements