Friday, February 22, 2013
Heidi Reamer Anderson (Florida Coastal School of Law) has posted Body Snatchers on SSRN. Here is the abstract:
In U.S. v. Jones, five concurring justices expressed their forward-looking discomfort with law enforcement’s warrantless use of surveillance technologies in public. The source of the justices’ discomfort was two-dimensional — “easy and cheap” search technologies were problematic because they increased the intrusiveness of, and the duration of, public surveillance. Although the justices carefully explained their concerns, they did not clearly identify the Fourth Amendment precedential hooks on which to hang those concerns. Accordingly, the concurrences left two key questions unanswered: (i) what is it about extended, warrantless public tracking that makes it feel so intuitively unreasonable, and (ii) is there support for that intuitive feeling in prior Fourth Amendment cases?
In this Essay, I suggest that extended, warrantless public tracking feels so intuitively unreasonable because it equates to virtual “body snatching.” Body snatching occurs when warrantless tracking is so personally intrusive, over such a long period of time, that it feels very much like a physical detention in public. Thus, in searching for the missing Fourth Amendment precedential support for the Jones concurrences’ intrusion and duration concerns, I suggest that the Court consider U.S. v. Place. In Place, the Court required a finding of probable cause prior to the seizure and dog sniff of luggage due to the intrusiveness of, and length of detention associated with, the luggage seizure. Similarly, the Court soon could find that warrantless, public tracking is not a search unless the intrusiveness and duration of the tracking cross lines similar to those crossed in Place. Using Place in this fashion would provide a solid foundation for restricting warrantless GPS tracking while also providing familiar certainty to law enforcement.