Reasonable Expectations Of Privacy In A Digital Age

Earlier this week the Supreme Court decided an interesting case that begins what will be a long process of determining how the criminal justice protections of the Constitution apply to knotty issues raised by our increasingly linked-in, networked, mobile device-oriented age.

The case raised the question of whether prosecutors could attach a GPS device to a suspect’s car and track its movements for 28 days without getting a warrant.  The Court ruled, unanimously, that such conduct constituted an unreasonable search and seizure.  However, the Court split on the question of the nature and extent of the constitutional violation.  The majority opinion focused on the fact that prosecutors had physically attached the device to the suspect’s vehicle without consent.  The concurring opinions, however, raised broader questions of how the government may apply electronic surveillance to suspects in an age where people carry cell phones and send unencrypted text messages and cars broadcast their locations.  Do we have as much of a reasonable expectation of privacy in such information as we do in, for example, documents kept in a file folder in a locked desk drawer in our homes?

The Supreme Court’s latest decision is an example of how the law often has to follow, and respond to, technology.  The Fourth Amendment language on searches and seizures and warrants was written in the days of travel on horseback, flintlock pistols, and communication limited to face to face conversations and written letters.  The Supreme Court has had to revisit how the Fourth Amendment applies with the development of the telegraph, the telephone, and the automobile, and now it will need to do so again in our mobile information age.

I’m glad the Court came down, unanimously, against a warrantless attachment of a GPS device on a car — but that seems like a pretty extreme case.  The closer cases will tell the tale.  And one of the fundamental questions is likely to be:  does the prevalence of mobile devices, and the abundance of personal information we routinely carry and communicate to just about everybody, make it more or less reasonable for us to view that information as private?

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