By Kait Michaud*
The Supreme Court docket for 2012-2013 reveals the continued role that Fourth Amendment questions will play in future constitutional jurisprudence. The Court accepted review of a Fourth Amendment challenge to dog-sniffing (Florida v. Jardines, in which a trained police dog sniffed for the scent of drugs outside of an individual’s home without probable cause), but denied without comment Fourth Amendment challenges to the TSA body scanners. In accepting the dog-sniffing case, the Court reveals an implicit comfort with analyzing intrusions into privacy that are not due to the proliferation of new technology. Likewise, in rejecting without comment challenges to the new technological device of body scanners utilized by government officials, the Court reveals discomfort in analyzing intrusions into privacy caused by new technologies. The majority and concurring opinions of United States v. Jones, decided this past January, explains the court’s actions in accepting for review Jardines, while concurrently rejecting review of body scanners. Until Congress steps up and takes action, it is likely that the Court will continue to deny without comment Fourth Amendment cases concerning new technological devices.
On January 23rd of this year, a unanimous Supreme Court, in a majority opinion written by Justice Scalia, took a tepid step forward in upholding the constitutional rights of the privacy of United States citizens from unreasonable searches and seizures. The case, United States v. Jones, which involved warrantless police monitoring of a vehicle for 28 days through utilization of a GPS, was decided on narrow grounds: the illegitimacy of physical trespass. Because the government committed a physical trespass in placing the GPS onto the car that was to be watched, and only because of this, the Court held that the monitoring violated the Fourth Amendment.
A concurring opinion by Justice Sotomayor noted the inadequacy of the holding to deal with future monitoring by law enforcement, as “physical intrusion is now unnecessary to many forms of surveillance.” The inadequacy of the physical trespass standard is stark and legal analysts, including John H. Whitehead of the Huffington Post, were quick to note the many forms of technologically-based surveillance that would be immune from such a rule, including cell phones with built-in GPS, facial recognition software used in conjunction with surveillance cameras, and monitoring that utilizes drones.
While Justice Sotomayor’s concurring opinion notes at great length the many holes of coverage allowed by such a trespass standard, Justice Scalia’s majority opinion did not ignore the problem. Rather, he noted with seeming distress that “vexing problems” may have to be addressed in the future, but stated that such problems did not need to be preemptively solved with this case. Justice Scalia suggested that the Court would implement the Katz rule to address these future “vexing problems” if and when the Court is presented with them.
The Katz rule, which works in tandem with the physical trespass rule in Fourth Amendment doctrine, provides protection against government monitoring in those areas in which a citizen has a “reasonable expectation of privacy.” As Justice Alito establishes in his Jones concurring opinion, however, reasonable expectations of privacy are social constructs affected by legal rules, changing norms, and unforeseen technological advances. To ground a constitutional protection in such an amorphous and ever-changing definition provides for rights that quickly change, and given our technologically advancing society, rights that quickly erode. This rule has even found that a citizen’s right to privacy may depend on geographic location. (See Florida v. Riley, finding that a helicopter monitoring a backyard not visible from the street was constitutional due to the frequency of flights in that particular area, but might not be constitutional in areas of the country that airplanes rarely fly over.) Can Scalia, a Justice so ardently in favor of consistent constitutional principles really be advocating for an application of the Katz test as a solution to future problems? (Scalia has even publicly acknowledged his opprobrium for the Katz rule stating, “I don’t think that was the original meaning of the Fourth Amendment. But nonetheless it’s been around for so long, we are not going to overrule that.”)
What Scalia’s opinion really cries out for, and Sotomayor’s concurrence demands, is what Alito’s concurring opinion goes on to suggest in passing: congressional action. In a compelling piece from 2004, The Fourth Amendment and New Technologies, Professor Orin Kerr of George Washington University Law School relays the historic difficulty the Supreme Court has had when applying Fourth Amendment protections to new technologies. He theorizes that this difficulty is particularly salient in Fourth Amendment doctrine due to the large role of unforeseen technology. According to Kerr, the justices of the Supreme Court rarely understand the intricacies of these new technologies, and even when they do, they can rarely fit the implications of these technologies into the rigid framework created by stare decisis. This leads to Kerr’s central thesis: Congress is better equipped to safeguard constitutional liberties in the Fourth Amendment context. Congress can gain more complete information about how technologies function and is not trapped by the rigid legal rules that courts must adopt. Likewise, Congress can continue to tweak its laws, allowing for flexibility when the unforeseen becomes reality.
If Congress takes action, then the Katz rule ironically may prove sufficient for future constitutional inquiries by preemptively protecting “reasonable expectations” in a world with ever-evolving technologies. The Court, in accepting Jardines and failing to review TSA body scanners, is acknowledging this fact, just as they did in the Jones opinion.
Jardines, in challenging the constitutionality of dog-sniffing outside of a home, falls nicely within the Katz rule. Dogs are not a new technology which the court must analyze, and do not risk detection of “extra” information that new technological devices threaten. (In Kyllo v. United States the court expressed concern that a thermal imaging device, used to detect use of heat outside of a home to determine if marijuana was being grown, could also be used to detect “extra” information such as “at what hour each night the lady of the house takes her daily sauna and bath.”) Trained dogs will simply react to the smell of certain drug-identifiers, and nothing more. The court here has accepted a case that will likely be upheld under Katz.
The TSA scanners, on the contrary, press the boundaries of the Katz rule, as Americans, at first outraged by the invasion of privacy presented by the scanners, have grown somewhat complacent. The “reasonable expectation of privacy” has eroded as the scanners have been implemented and citizens grown accustomed to their use. While the invasion into privacy may well be justified for security purposes, it is Congress that is best equipped to determine and balance the need for safety with the constitutional guarantee of privacy.
The Supreme Court has clearly made a statement, both through the opinion in United States v. Jones, and its refusal to review the constitutionality of body scanners while concurrently reviewing Jardines. If technological infringement upon Fourth Amendment privacy is to be limited in any meaningful fashion, in a manner that concurrently protects American citizens without depriving them of their constitutional rights, Congress must hear the cry of the Court and take preemptive action. When it comes to technological innovation, Congress is best suited to balance the needs of national security with the American citizens’ privacy rights.
*Kait Michaud is a 2013 J.D. candidate at Harvard Law School. She is an Editor-In-Chief of the Harvard National Security Journal.