Paper maps are increasingly rare, replaced by built-in Global Positioning System GPS devices or the ubiquitous smartphone. The days of having to keep change in a glove compartment to pay a toll attendant are long past; instead, an EZ-Pass reader enables drivers to travel seamlessly across multiple states and pay the charges directly from an online account. Where law enforcement is involved, these powerful new technologies also raise questions about how their use can be harmonized with the U.
Under what circumstances does an eye in the sky or on a pole, or inside your phone constitute a search under the Fourth Amendment—and thus presumptively require a warrant—when it is used for public surveillance? At the same time, it is notoriously difficult to articulate when surveillance in public works a constitutional violation and when it is simply the price for leaving the house.
While the judiciary is nowhere near consensus, courts are finding that some public manifestations of this new, digitally-enabled tracking are so inimical to any standard notions of privacy that the Fourth Amendment imposes limits on their use, as discussed in further detail below. The home has always been sacrosanct territory for the Fourth Amendment. In United States v. A couple of decades later, the Supreme Court confronted another novel technology, which police were using to tail criminal suspects: the beeper.
Knotts, U. In these cases, the Court concluded that because the police could have freely followed and observed the suspects on public roads and highways without getting a warrant, using a beeper to make the job a little easier did not sound constitutional alarms. Cuevas-Perez, F. Walker, F. Of course, the stock-in-trade of good policing often involves the real-time observation of people going about their daily business.
This kind of visual observation, while potentially intrusive or discomfiting to the subject or passersby, does not raise constitutional issues. It is also, however, cost- and resource-intensive. Jones, U. These costs have historically required law enforcement agencies to make critical judgments about what types of police work and surveillance to undertake, and they have acted as an effective brake on at least some kinds of government overreach.
Enter digital technology. As surveillance techniques grow ever more technologically sophisticated, the quantum of data that is easily available grows as well, while the cost of obtaining, keeping, and analyzing it generally drops. Davis, F. Ganias, F. This Article proposes one way to meet this challenge. Existing case law, seen through a new lens, provides the blueprint for a workable, comprehensive mechanism for applying the Fourth Amendment to digital age public surveillance technologies.
Most notably, Christopher Slobogin has proposed practical legislative methods and offered the theoretical and conceptual underpinnings for doing so, including shifting to an administrative law rather than constitutional law framework. This piece does not take a position on those proposals, which are also worth serious attention.
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This approach aggregates factors courts have already identified as relevant to their Fourth Amendment analysis, but in an ad hoc manner, and transforms them into a more rigorous, replicable approach. Once the Fourth Amendment is triggered, the Constitution generally requires police to get a warrant, which must meet the particularity standard. That will usually be possible through careful ex ante and ex post tailoring; where it is not, that use of the surveillance technology may not be compatible with the Constitution.
Wisconsin, U. Part II outlines a new, multi-factor approach for both courts and law enforcement to use in assessing whether the Fourth Amendment is implicated by surveillance in public, drawing on existing case law and various scholarly approaches. It also briefly addresses the circumstances in which the First Amendment and Fourteenth Amendment may provide avenues for relief.
Finally, Part III uses several case studies to explore how this approach plays out in the context of specific technologies that facilitate surveillance in public.
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This section comprises two main parts. Second, it canvasses both the technology behind and the current legal treatment of seven major surveillance tools: GPS automobile tracking, cellular phones, video surveillance cameras, drones, license plate readers, body-worn cameras, and biometric identification technologies.
Knotts , has come to pass. The Supreme Court launched its modern privacy jurisprudence in , with United States v. Trying to catch Charles Katz in the act of placing an illegal bet, the Federal Bureau of Investigation FBI used a wiretap to listen in on a call he made from a public pay phone booth.
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The agents did not get a warrant for the wiretap, reasoning that because the pay phone was in public and Katz could be seen through its glass walls, he was taking the risk that someone might overhear the conversation. In other words, because a member of the public could listen in, so could the police. The Supreme Court saw it differently. The Court rejected its previous, crabbed reading of the Constitution, which had held that the Fourth Amendment protected only private spaces, such as homes, and only against physical intrusion. United States, U. The fact that Katz had shut the telephone booth door showed his intent to keep the conversation private.
Katz established for the first time that individuals had rights to privacy that were not dependent on whether a physical locale had been breached.
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And second, if so, is society prepared to recognize that expectation as reasonable? As a result, courts were initially relatively dismissive of claims for privacy in public spaces, 28 See, e. Gonzalez, F. Jardines, S. Hayes, F. Overton Cty. Because anyone on the roads could see the driver, he had no legitimate expectation of privacy in his movements.
By contrast, the Court ruled the following year that when a beeper is taken inside a private home and reveals information that otherwise would have required a warrant to obtain, it is a search. S , —17 While it allowed law enforcement to do relatively precise tracking and to locate a person or item out of direct eyesight, it still required constant attention.
Weaver, N. These practices are upon us. Maynard, F. GPS devices use satellites to calculate their location with precision. While making car trips easier and faster, they also enable law enforcement agencies to track vehicles. Standalone GPS units can be surreptitiously attached to cars, 42 See, e. Once attached, a GPS device reports the location of the vehicle with precision and in real time.
GPS devices are also used in cell phones to help calculate location for a variety of purposes. Frontier Found. From relatively early on, courts have recognized that GPS allows for precise tracking on a monumental scale. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period.
Several years later, the Supreme Court was confronted with a similar case.
Hiding in Plain Sight: A Fourth Amendment Framework for Analyzing Government Surveillance in Public
In two concurring opinions, however, five members of the Court highlighted the privacy concerns raised by location tracking, emphasizing the length of the surveillance, the low cost and surreptitious nature, and the unmatched intrusiveness. Only one court so far has addressed whether using a built-in GPS device without a warrant would constitute a search. July 22, These cell phones also effectively serve as personal tracking devices.