Private: The Fourth Amendment’s Future

By Micah W.J. Smith, an associate at O’Melveny and Myers, and Babak Siavoshy, a teaching fellow at UC Berkeley’s Samuelson Law, Technology and Public Policy Clinic. Siavoshy was part of the legal team that represented Antoine Jones while an associate at O’Melveny and Myers, and has not worked on the case in his capacity at UC Berkeley. 

In June of last year, Chief Judge Alex Kozinski and one of his law clerks wrote a eulogy for the Fourth Amendment, in which they mournfully concluded that “[w]ith so little left private, the Fourth Amendment is all but obsolete.” With the benefit of hindsight, it seems the eulogy may have been premature. On Monday, the Supreme Court handed down its decision in United States v. Jones, and unanimously held that the government violated Antoine Jones’s Fourth Amendment rights by surreptitiously monitoring his vehicle’s movements on public roads for four weeks. The Court’s decision is a ringing endorsement of the Fourth Amendment as a bulwark of liberty — and of the Amendment’s relevance to the surveillance technologies of the twenty-first century.

As members of Antoine Jones’s legal team in the Supreme Court, we thought we’d offer a few thoughts on the case and its implications. Given the significant amount of commentary that is already available on the blogosphere, we won’t dwell too much on the details. (For readers interested in a more granular analysis, we recommend Tom Goldstein’s post at SCOTUSblog. Or Orin Kerr’s several posts at The Volokh Conspiracy. For readers interested in a broader overview, try Adam Liptak’s article in The New York Times.)

Prior to Jones, there were good reasons to believe the Fourth Amendment was dying. Since the Court decided Katz v. United States over forty years ago, the Amendment’s protections were commonly understood to apply only when the government intruded on a person’s subjective expectation of privacy that society would deem reasonable. The Court had never explicitly overruled earlier cases that pinned the Fourth Amendment to founding-era property concepts, but any commentator familiar with LaFave’s authoritative treatises would have been tempted to conclude that those cases had lost their vitality, or were, in legal jargon, no longer “good law.”

The problem was that at the same time it took on Fourth Amendment primacy, privacy was losing some of its power. This was in part because new and fast-changing technologies — think smart phones, sophisticated data mining techniques, and Google — were at once making our lives more and more convenient and less and less private. It was also perhaps because a new generation of Americans has come of age with Twitter and Facebook and YouTube, and many of us now have a much more complicated relationship with privacy. It’s a relationship that takes for granted that privacy might flourish even in public places, and even in information that has been shared with some people but not everyone. And it’s a relationship the law has been too quick to paint as a lack of any privacy at all.

Perhaps that’s in part what motivated the Court in Jones to write an opinion that ensures the Fourth Amendment would survive the death of the traditional notion of privacy. In a legally groundbreaking majority opinion for the Court, Justice Scalia wrote that the government engaged in a “search” simply because it committed “a physical intrusion of a constitutionally protected area in order to obtain information.” Finding that this “common-law trespass test” was enough to decide the case, the majority passed on applying the alternative “reasonable expectation of privacy test”— or what many would have thought was not the alternative test, but the only one.

It was left to Justice Alito, in an opinion concurring in the judgment, to apply Katz’s privacy-based test to the government conduct. He concluded that the 28-day surveillance of Jones’s movements on public streets was enough to violate Jones’s reasonable expectation of privacy.  Justice Sotomayor embraced both Justice Scalia’s and, to some extent, Justice Alito’s opinions, and wrote a potentially pathmarking concurrence that explained how the reasonable expectation of privacy test should be applied to future technologies and cases. Notably, Justices Alito and Sotomayor recognized that privacy does not wither in public, and Justice Sotomayor went so far as to say that Fourth Amendment jurisprudence should “cease to treat secrecy as a prerequisite for privacy.”

Taken together, these three opinions create what we might call a “big tent” approach to the Fourth Amendment, which should attract both property and privacy rights enthusiasts. It effectively creates a two-step test that lower courts must apply to determine whether a particular government conduct is a Fourth Amendment “search.” First, courts should ask whether the government obtained information through an act amounting to a physical intrusion of a constitutionally protected area — an individual’s person, home, papers, or effects. Such a trespass is presumably always a search, regardless of the scope of the intrusion or the privacy interests at issue. Second, if there is no physical intrusion, court should apply the familiar reasonable expectation of privacy test from Katz, in light of the additional guidance from Justice Alito and Justice Sotomayor’s concurring opinions.

The biggest open question, of course, is how courts will apply these standards in future cases.  Only time will tell. But as several commentators have already noted, the Jones decision's “big tent” approach leaves open many important questions about how the property- and privacy-based tests should be applied in new situations, particularly in those involving emerging surveillance technologies.

We predict that the fate of each of these tests is likely to be driven by the Justices who are perhaps least likely to be sympathetic to the interests the tests preserve.

On the one hand, Justice Alito has taken a leading role in articulating how privacy should be understood and applied in cases involving emerging technologies. It might be fair to say, however, that in comparison to the other Justices sympathetic to the privacy test — Justices Ginsburg, Breyer, Sotomayor, and Kagan — Justice Alito is the least likely to apply the test expansively in future cases. On the other hand, Justice Sotomayor has cast herself in a leading role in articulating how the Court’s new common-law trespass test should be understood and applied in future cases. As the fifth vote for the property-driven standard, she is likely to play an influential role in determining the test’s fate. And she is probably the least likely of the other Justices who have embraced the common-law trespass test — the Chief Justice and Justices Scalia, Kennedy, Thomas — to apply the property-centric test expansively.

Time holds many mysteries. The more nuanced view of privacy that Justices Alito and Sotomayor embraced might lead to a reasonable-expectation-of-privacy test that will survive technological advances. Or perhaps the common-law trespass test will serve as a critical backstop. But one thing was made clear on Monday: the Fourth Amendment is not yet ready to rest in peace.

Constitutional Interpretation, Criminal Justice, National Security and Civil Liberties, Search and Seizure, Supreme Court, Technology Law and Intellectual Property