Saturday, July 14, 2012
Thomas K. Clancy (West Virginia University College of Law) has posted United States v. Jones: Fourth Amendment Applicability in the 21st Century (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:
To control governmental actions, the Fourth Amendment must be applicable. That applicability question is a two sided inquiry: (1) does the governmental activity – which must be either a search or a seizure – invade (2) an individual interest protected by the Amendment? If one does not know what is protected by the Amendment, then it cannot be determined what the government can do without implicating it. If one does know what is protected, governmental intrusions of that protected interest must be analyzed to determine whether they are considered a search or seizure and accordingly required to be reasonable. United States v. Jones addressed that applicability question and is the subject of this essay.
Jones is unlikely to have significant precedential value. The Scalia majority opinion offers little that is new: physical trespasses have always been viewed as implicating the Amendment and his opinion is notable primarily for reiterating that baseline view. The concurring opinions of Alito and Sotomayor offer vague observations about various technologies, using the reasonable expectation of privacy formula to project their views. Their comments are more likely to result in confusion rather than guidance for lower courts, illustrating the failings of the expectations framework. The Fourth Amendment protects “[t]he right of the people to be secure in their persons, houses, papers, and effects.” Grammatically, there is a relational aspect to the right set forth in the Amendment, which speaks of certain objects protected – people, houses, papers, and effects – but those objects are not absolutely shielded. Instead, the right to be “secure” is protected and I have long advocated invigorating that term and using it as the proper measure of the protection afforded by the Amendment. In contrast, Jones is a recycling of twentieth century arguments about property versus privacy that do not adequately confront the issues in the digital age.