Is Big Brother Watching?

Dear Readers, As I had mentioned in a prior column, the United States Supreme Court recently wrestled with defining the 4 th Amendment's place in an electronic age. All 9 justices reached the same conclusion in a bit of a muddled mess, as a prelude to probably a decade of litigation to sort out the parameters of electronic surveillance.

The facts in this ground-breaking decision are simple and straightforward. Antoine Jones was suspected of being a major drug dealer; he was sentenced to life imprisonment after being convicted. The Government tried everything from a "wiretap" warrant to video surveillance to try and build a case. It must not have been that strong as, even with the disputed evidence, the first trial ended with a "hung" jury.

The Government actually obtained a valid warrant to attach a GPS device to Jones's Jeep Cherokee. Unfortunately, the warrant required the device be attached within 10 days and the Government did not do so until the 11th day. Over a 4-week period, 2,000 pages of data connected Jones to his co-conspirators' "stash house."

So, there you have it. All the Government did was, in a public place, attach a device to a car and record the results. The4th Amendment protects "persons, houses, papers, and effects, against unreasonable searches and seizures." The Government actually tried to argue that this was not an "unreasonable" search, but none of the justices bought it.

But, where you drive a car is not a "protected" privacy interest. This is the "open fields" doctrine, which holds that what you grow on your farm is not a protected privacy interest, as opposed to right next to your house which might be. Hence, the apparent constitutional issue was with the attachment of a device to the car, one-day late, as opposed to the data transmitted; if there was a problem with the Government's actions, it would have been due to an unlawful search, as opposed to a seizure of the car or information.

This whole scenario seems a far cry from our Founding Fathers' world. As Justice Alito comments in his concurring opinion, the analogy would be a detective stuffed in the back of a carriage for 4 weeks recording its every location and travels.

Justice Scalia, who wrote the Court's main opinion, disagreed that he could not find direction from Colonial America. He even went back to an English common law decision from 1765 to buttress his conclusion that anytime the Government "attaches" something to an "effect" (like a car), this is a common law trespass, which the 4 th Amendment protects us from. Therefore, Jones' rights were violated because the GPS device was attached one-day later than the warrant permitted.

Again, Justice Alito disagreed and his opinion had three (3) other Justices joining in his conclusion; this is what made the result a mess, as it is not clear if Justice Alito's opinion or Justice Scalia's majority opinion is the gold standard going forward. His concern was with Jones' "expectation of privacy," not with whether or not there was a "trespass."

This is important because he, and Justice Sotomayor (her concurring opinion was the deciding as to which justice's logic was the rule of the case) were trying craft a rule fitting the world we live in. Both of them, perhaps more presciently than Justice Scalia, felt that the Court should be more concerned with the blurring of the lines between public and private data in today's Facebook world.

For example, both of them noted that we already live in a world of acceptable government surveillance. Pictures are taken at intersections, and reports can be generated from "toll-road" usage, without violating any privacy rights. But, what of emails or cell phone data? Don't we have some privacy interest prohibiting the Government access to these without a warrant? Is "Big Brother" always watching us? Future questions for the Court and leaving much for ALL of us to ponder about how much privacy we really enjoy today.

Local attorney Jim Rockefeller owns the Rockefeller Law Center and is a former Houston Co. Chief Assistant District Attorney, and a former Miami Prosecutor.