The Court unanimously ruled that placing warrantless GPS tracking devices on cars was an unconstitutional search under the Fourth Amendment, but the justices differed on the rationale. Scalia, in a majority opinion joined by Chief Justice John Roberts and Justices Anthony Kennedy and Clarence Thomas, argued the tracking device was an unconstitutional trespass on Jones’s property. Justice Samuel Alito, in a concurrence joined by Justices Stephen Breyer, Ruth Bader Ginsburg, and Elena Kagan, rejected what he described as an “18th-century tort law” approach. Instead, he argued the tracking violated Jones’s reasonable expectation of privacy.
Sotomayor broke the tie and sided with Scalia. But her concurrence went into even greater detail about the risks that new technologies like GPS surveillance would pose to individual privacy and the Fourth Amendment’s protections.
GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. The Government can store such records and efficiently mine them for information years into the future. And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: limited police resources and community hostility.
To that end, Sotomayor wrote it may be necessary for the Court to revisit the third-party doctrine, a core component of modern interpretations of the Fourth Amendment. Under the doctrine, which emerged out of Supreme Court rulings on wiretapping in the 1970s, a person forgoes any reasonable expectation of privacy when handing over his or her personal information to third parties like corporations or banks. In other words, telephone calls between two people are generally protected from warrantless intrusion; a telephone company’s record of phone numbers a specific customer has dialed is not.
“This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks,” Sotomayor wrote in the concurrence, which no other justice joined. “People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.”
Some may find the loss of privacy in the digital age inevitable, Sotomayor added. “[But] I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year.” Her concurrence in Jones came one year before Edward Snowden, the National Security Agency contractor, revealed the existence of secret digital-surveillance programs that swept up vast amounts of personal data belonging to Americans. Lawsuits challenging those programs are working their way through the federal courts.