Friday, September 28, 2012
Jace C. Gatewood (Atlanta's John Marshall Law School) has posted It’s Raining Katz and Jones: The Implications of United States v. Jones – A Case of Sound and Fury (Pace Law Review, Vol. 33, No. 2, 2013 Forthcoming) on SSRN. Here is the abstract:
This Article discusses the implications of United States v. Jones, the recent Supreme Court decision that held that the warrantless installation and use of a GPS tracking device to track a suspect’s movements constitutes a search under the Fourth Amendment when accompanied by a physical trespass. This Article examines the Court’s decision in light of emerging technology capable of duplicating the monitoring undertaken in Jones with the same degree of intrusiveness attributable to GPS tracking devices, but do not depend on any physical invasion of property. This Article also examines how the pervasive use of this emerging technology may reshape reasonable expectations of privacy concerning an individual’s public movements making it all the more difficult to apply the Fourth Amendment constitutional tests outlined in Jones.In this regard, this Article explores recent trends in electronic tracking, surveillance and other investigative methods that have raised privacy concerns, including automatic license plate recognition systems, Smartphone tracking, and third-party subpoenas to access private information from third-party service providers, may fall outside the purview of both Jones and Katz, even though the accumulated effect of the information collected can provide a comprehensive record of an individual’s comings and goings. This Article makes the argument that neither Jones nor the reasonable expectation of privacy test set forth in Katz provides adequate Fourth Amendment protection against warrantless unwanted electronic intrusions by law enforcement or other nontrespassory invasions (even though such intrusion may result in the collection of vast amounts of information about an individual’s daily movements) either because there is no physical trespass involved, or because of the nature of the intrusion or the pervasiveness of the technology involved.