New Technologies Enable Mass Surveillance on a Scale that Existing Fourth Amendment Jurisprudence Can Barely Conceive

droneCourts have identified exceptions to the Fourth Amendment’s prohibition on warrantless searches and seizures, as well as limitations on law enforcement’s authority within those exceptions, on a case-by-case basis for more than 100 years. As new technologies have appeared in society, and as law enforcement has adopted new investigative technologies, courts have struggled to keep up. Supreme Court decisions have applied at least two different theories, viewing cases in terms of either private property rights or an individual’s reasonable expectation of privacy. The “mosaic theory” of the Fourth Amendment, which is gaining some support in lower courts, looks at the long-term implications of aggregating surveillance data. A comprehensive surveillance program in Baltimore, Maryland, which only recently became known to the public, could force a reconciliation of these theories.

The most recent Supreme Court case to address warrantless electronic surveillance by police is United States v. Jones, 132 S. Ct. 945, 565 U.S. ___ (2012). That case involved the use of a GPS tracking device attached to a person’s vehicle, which gave police information on the vehicle’s location around the clock for a period of about four weeks. The court affirmed the D.C. Circuit Court of Appeals’ decision reversing the conviction on Fourth Amendment grounds. All nine justices considered the police’s actions to be unconstitutional, but they differed considerably in their reasons.

The majority opinion, written by Justice Scalia and joined by four other justices, was largely based on the private property theory. By installing the GPS device, police “physically occupied private property for the purpose of obtaining information.” Jones, 132 S. Ct. at 949. Justice Scalia cited “common-law trespass” as a basis for his ruling, id., and cited several recent cases that found Fourth Amendment violations based on electronic intrusions onto private property. See, e.g. Kyllo v. United States, 533 U.S. 27 (2001).

Scalia acknowledged that cases going back almost 50 years have interpreted the Fourth Amendment as “protect[ing] people, not places.” Jones, 132 S. Ct. at 950, quoting Katz v. United States, 389 U.S. 347, 351 (1967). Katz involved the warrantless use of a wiretap, which involved no physical intrusion onto private property. A concurring opinion written by Justice Alito, and joined by three justices, applied the “reasonable expectation of privacy” theory developed in Katz and criticized the majority’s property-based approach as outdated.

Justice Sotomayor, who also joined in the majority opinion, wrote a separate concurrence drawing on mosaic theory. She noted that long-term digital surveillance allows the government to “efficiently mine [stored data] for information years into the future,” which raises a question of whether there is “a reasonable societal expectation of privacy in the sum of one’s public movements.” Jones, 132 S. Ct. at 956. The D.C. Circuit’s opinion in the case further develops the potential for “prolonged surveillance” to “reveal an intimate picture of [a person’s] life” in ways that trigger Fourth Amendment concerns. United States v. Maynard, 615 F.3d 544, 562 (D.C. Cir. 2010).

In late August 2016, media reports revealed a privately funded program in Baltimore that uses airborne surveillance. A Cessna airplane equipped with wide-angle cameras capable of photographing a 30-square-mile area began circling the city at all hours in January this year, continuously sending data to analysts on the ground. It is not yet clear exactly how police have used, or plan to use, data obtained through this program, but the sheer scale of the program raises the same concerns addressed by the proponents of mosaic theory.

These blog posts are meant to be illustrative only. Unless expressly stated to the contrary herein, these matters are not the result of any legal work of Michael J. Brown, but are used to communicate a particular point of view. Michael J. Brown does not claim credit for any legal work done by any lawyer or law firm either generally or specifically, with respect to the matters contained in this blog.

Board-certified criminal defense attorney Michael J. Brown represents people facing charges in west Texas state and federal courts. Contact us online or at (432) 687-5157 today to schedule a confidential consultation.

More Blog Posts:

FBI Use of Unmanned Drones for Aerial Surveillance Raises Fourth Amendment Concerns, Texas Criminal Lawyer Blog, September 9, 2015

Facial Recognition Technology Arrives at Texas Border Patrol Stations, Texas Criminal Lawyer Blog, July 17, 2015

Lawmakers Propose Restrictions on Drone Surveillance, Texas Criminal Lawyer Blog, March 29, 2013

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