The Supreme Court’s decision this week in U.S. v. Jones is the most important privacy development of the Roberts era. In the course of requiring the police to get a warrant before attaching a Global Position System device to the bottom of a suspect’s car, the court laid down a series of markers for future cases involving digital privacy. The justices unanimously rejected the Obama administration’s extreme and unnecessary claim that citizens have no expectation of privacy in public places, and that the police can therefore track our movements 24/7 for a month without a valid warrant.
There was a division of opinions about how broadly to protect digital privacy: the majority opinion, by Justice Antonin Scalia, emphasized that the police had trespassed on the suspect’s property when they put the GPS device on his car without his consent. By contrast, the concurring opinion by Justice Samuel Alito, joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, recognized that long-term surveillance over the course of a month is far more invasive than short-term surveillance over the course of a day, insisting that warrants should be required for long-term surveillance whether or not it involves physical trespass.
As Alito noted, the police can obtain geolocational information stored on third party services from the theft prevention devices that are built into many cars without any physical invasion whatsoever. For this reason, Justice Sonia Sotomayor suggested in a separate concurrence, the court may in the future have to consider the legal doctrine that says that when I store data in the digital cloud – that is, on third party servers owned by Google, Apple, and Yahoo – I assume the risk that the owners of the servers will share the data with the police.
The Jones case, therefore, is only the first a series of constitutional conflicts over digital privacy that the court will confront over the coming decades. In Constitution 3.0: Freedom and Technological Change, my co-editor Benjamin Wittes and I asked a group of thought leaders to imagine the kinds of legal challenges involving technology that the Supreme Court might confront in the year 2025. Here is a sample of the kinds of issues they grappled with:
• How do we ensure our security in the face of the biotechnology revolution and our overwhelming dependence on internationally networked computers?
• How do we protect free speech and privacy in a world in which Google and Facebook have more control than any government or judge?
• How will advances in brain scan technologies affect the constitutional right against self-incrimination?
• Are Fourth Amendment protections against unreasonable search and seizure obsolete in an age of ubiquitous video and unlimited data storage and processing?
• How vigorously should society and the law respect the autonomy of individuals to manipulate their genes and design their own babies?
In my chapter, on the future of privacy and free speech, for example, I imagined that Facebook and Google will be asked in coming years to link all the public and private surveillance cameras that are proliferating across the world and to post the live feeds online. If the feeds were archived and stored, it would be possible to click on a live image of any street in the world, zoom in on a particular individual, back click to see where he had come from and forward click to see where he is going, making possible 24/7 surveillance of anyone forever. If the police used a linked camera network like this to follow citizens without a warrant, would the surveillance violate the Constitution?
After U.S. v. Jones, we know that at least four justices, and probably more, may be willing to say yes, holding that long-term surveillance is an unreasonable search whether or not it involves a physical trespass. But for now, it is not the Supreme Court but Google and Facebook that will have the last word on our privacy and free speech rights, and as private corporations, they’re not regulated by the Constitution. That’s why legislators, technologists, administrative agencies, and active citizens will have a crucial role to play as well. But it’s encouraging that the Supreme Court, in its first major encounter with privacy issues in the web 2.0 era, reached a bipartisan consensus that invasive surveillance needs to be regulated on or offline. Now it’s up to Congress, and to American citizens everywhere, to follow the court’s lead.
Jeffrey Rosen, a law professor at George Washington University, is co-editor with Benjamin Wittes of Constitution 3.0: Freedom and Technological Change.