Thursday, March 7, 2013
Erin Murphy (New York University School of Law) has posted Back to the Future: The Curious Case of United States v. Jones (Ohio State Journal of Criminal Law, Vol. 10, No. 1, 2012) on SSRN. Here is the abstract:
Historically, the Supreme Court has couched the protections of the Fourth Amendment in the language of privacy and property. Yet expectations about freedom from government interference are no longer solely expressed in those terms. People routinely trade their privacy or property interests for complimentary e-mail services or faster toll crossings, and yet unfettered access to such information strikes many observers as contrary to the Fourth Amendment’s core values. If neither privacy nor property theories provide a constitutional basis for oversight, however, then what does?
In Jones, the Justices were confronted with just this dilemma. In response, as this Essay will show, roughly half of the Justices followed Justice Scalia into the shelter of originalism. The other half, led by Justice Alito, ventured a bit more boldly into the great unknown, but ultimately punted responsibility to a coordinate branch. Only Justice Sotomayor made a first attempt at tackling the problem, but she wrote alone. Regrettably, none of the opinions offered lasting guidance to lower courts, much less to law enforcement actors. Nevertheless, this essay argues that each is still notable for some aspect of what it conveys. Moreover, it closes by postulating that Jones is most interesting for what it didn’t say — press reports proclaiming "warrant needed for GPS tracking!" notwithstanding.