Tuesday, March 19, 2013
Ebony Morris has posted Always Eyes Watching You: United States v. Jones and Congress's Attempts to Stop Warrantless Government Surveillance (40 S.U.L. Rev. ___ (2013) (forthcoming)) on SSRN. Here is the abstract:
In recent years, technology has advanced to new levels. Technology that was exclusively used by government officials is now available to the general public. Unfortunately, law enforcement officials have taken advantage of technology's availability to prey on unsuspecting citizens and invade privacy protected by the Fourth Amendment. Governmental use of Global Positioning System (GPS) tracking devices has invaded the privacy of unsuspecting citizens, and in the absence of precedent, officials have continued to invade privacy. In United States v. Jones, the United States Supreme Court got its opportunity to halt governmental abuse of technology; however, the Court only addressed the physical element of Fourth Amendment searches instead of its presence through the use of GPS tracking devices without a physical trespass. As Associate Justice Samuel Alito suggests, Congress is an appropriate body to address the issue.
Currently, the Senate Judiciary Committee is considering the Geolocational Privacy and Surveillance Act (GPS) Act. In 2011, Senator Ron Wyden (D-OR) and Representative Jason Chaffetz (R-UT) introduced the bill to require officials to show probable cause before obtaining a GPS tracking device. This article will explore the jurisprudence leading up to the Court's decision in Jones while emphasizing the Court's failure to fully address an expectation of privacy concerning abuse of GPS tracking devices. This article will also discuss the GPS Act and government officials' response to the Act. The article will analyze the strength and weaknesses of the Act and how Congress can address the Act's weaknesses before enactment. The author concludes by suggesting that Congress must act now to enact a law that not only strikes a balance between effective law enforcement investigations and privacy expectations, but also provides guidance for future cases involving governmental abuse of advancing technology.