After United States v. Jones, After the Fourth Amendment Third Party Doctrine

Abstract

In United States v. Jones, the Supreme Court unanimously rejected the proposition that the Government can surreptitiously electronically track vehicle location for an entire month without Fourth Amendment restraint. While the Court's three opinions leave much uncertain, in one perspective they fit nicely within a long string of cases in which the Court is cautiously developing new standards of Fourth Amendment protection, including a rejection of a strong third party doctrine. This Article develops that perspective and provides a cautiously optimistic view of where search and seizure protections may be headed.More detail:United States v. Jones, in which the Court unanimously held that month-long Global Positioning System (GPS) tracking of a vehicle constitutes a Fourth Amendment search, did not in itself tell us much. The Government took an egregious position, and therefore lost nine to zero. The Court now applies a resurrected trespass-based conception of search, but we know extremely little about its application and what results it will alter. Five Justices believe long-term location tracking is typically a search because it invades a reasonable, seemingly empirical, expectation of privacy. And one Justice, Justice Sotomayor, is willing to reconsider the entire third party doctrine, which holds that one typically retains no Fourth Amendment expectation of privacy in information conveyed to another.But in the broader view, it is not merely one Justice who will not apply the third party doctrine in a strong form, and thus I have previously written the doctrine’s obituary. Jones fits nicely within a string of cases in which the Court is cautiously developing new standards of Fourth Amendment protections, rather than declaring generally applicable categorical rules. Given that it was a grand pronouncement of an allegedly categorical rule in United States v. Miller that has caused much of the trouble, this strikes me as a sensible way to proceed. One can expect the road will not be smooth, but we are used to zigs and zags in Fourth Amendment jurisprudence. It is hard to imagine anything less when the High Court is attempting to ferret out what is reasonable, which requires balancing private and law enforcement interests, and when technology, policing, crime, and social norms are constantly in flux.Much of the ground has been plowed before, including in articles dating back many years, which calls for brevity here. Indeed, Jones will surely spark a new crop of Fourth Amendment papers, the authors of some of which will read what has gone before and some of whom will not. But Jones provides a nice hinge around which to discuss where the Fourth Amendment has been and where it might be going — and more generally where citizens’ protections against unreasonable searches and seizures, which do not depend solely upon the Fourth Amendment, might be going. This Article will analyze that relatively high level, and, like many others, the author will begin in other fora to drill down into specifics of how the Fourth Amendment should apply to the particular techniques of location tracking. Part II describes the relevance of modern technologies and social norms, and how the third party doctrine has fared in the courts in the last quarter century. It reveals a doctrine that is more limited and nuanced than some might think, or at least one that can be so read. Part III describes the opinions in Jones and analyzes how they fit within this greater context. Part IV presents a cautiously optimistic view of where the law, meaning not only the Fourth Amendment law but also the statutory law, might be headed.