Courts grapple with technology, privacy rights
By Brian Bowling
Published: Saturday, Nov. 30, 2013, 12:01 a.m.
As police use technology to gather evidence, courts struggle to update the concept of privacy embodied in the Fourth Amendment guarantee that people be free of unreasonable searches and seizures, experts say.
“There are a lot of unanswered questions in the law, as to what can be done and what can't be done,” said Lisa Nelson, an associate professor of public affairs in the University of Pittsburgh's Graduate School of Public & International Affairs.
The latest landmark decision occurred last year in a Washington case in which police attached a GPS tracking device to a drug suspect's vehicle without a valid warrant. The Supreme Court unanimously ruled in United States vs. Jones that attaching the device constituted a “search” under the Fourth Amendment, but justices split, 5-4, on the legal basis for the ruling. The court left unanswered the question of whether police needed a warrant to conduct the search.
The 3rd U.S. Circuit Court of Appeals answered that question in October when it ruled that the FBI should have obtained a warrant in December 2010 before attaching a GPS to the van of a suspect in pharmacy burglaries in Delaware, Maryland and New Jersey.
The 5-4 split in the Jones decision fascinates legal scholars because the court majority reasserted a definition of privacy — physical intrusion — that was the standard from at least 1914 until 1968.
The 1928 Supreme Court Olmstead decision, for example, ruled that police didn't violate a suspect's rights by wiretapping his phone, since the wiretap didn't involve entering his residence.
In the 1968 Katz decision, the court moved away from that standard and ruled that police violated a suspect's rights when they tapped a public phone they knew he used, because he had a “reasonable expectation” of privacy when using the phone.
Nelson said the Katz decision “realized technology could invade the notion of privacy that was at the heart of the Fourth Amendment.”
The invasion continues with emails, texting, Internet searches and smartphones with GPS tracking. All leave trails that run the border between private and public venues.
The majority opinion in Jones was based on the police physically attaching the device. The minority opinion said that tracking the vehicle's movements for four weeks, instead of a few hours or days, violated the suspect's reasonable expectation of privacy.
David Harris, a Pitt law professor, said the mashup of the two standards results in a “mixture that's not very satisfying on either end.”
Left unresolved is how much information police can gather, as opposed to how long they can gather it, without violating someone's privacy, he said.
Courts have upheld police going through suspects' garbage despite the amount of financial and personal information that such a search can yield. Most people would consider that an invasion of privacy, and that illustrates a major downside to the “reasonable expectation” standard, he said.
“It's largely a reflection of the values of the judges hearing the case,” Harris said.
The issue of how much is too much will only grow because, as technology advances, it will enable “more and more intrusive searches simply because of the way we live our lives,” he said.
St. Vincent College law professor Bruce Antkowiak said the opinions filed in the Jones ruling show that neither standard holds up well.
Justice Sonia Sotomayor was one of five justices supporting the majority opinion, but she filed a concurring opinion that suggests the courts will never get a sensible definition until they quit treating “secrecy as a prerequisite for privacy.”
For example, the fact that people disclose information to a bank doesn't mean they've given up their Fourth Amendment right to keep that information private, she said.
Antkowiak agreed that limiting privacy to “secrets” would undermine the Fourth Amendment because hardly anything would be considered private.
“It is truly one of the great challenges for the law in the next decade to try to define what privacy means,” he said.
Brian Bowling is a Trib Total Media staff writer. Reach him at 412-325-4301 or email@example.com.
Show commenting policy
TribLive commenting policy
You are solely responsible for your comments and by using TribLive.com you agree to our Terms of Service.
We moderate comments. Our goal is to provide substantive commentary for a general readership. By screening submissions, we provide a space where readers can share intelligent and informed commentary that enhances the quality of our news and information.
While most comments will be posted if they are on-topic and not abusive, moderating decisions are subjective. We will make them as carefully and consistently as we can. Because of the volume of reader comments, we cannot review individual moderation decisions with readers.
We value thoughtful comments representing a range of views that make their point quickly and politely. We make an effort to protect discussions from repeated comments either by the same reader or different readers.
We follow the same standards for taste as the daily newspaper. A few things we won't tolerate: personal attacks, obscenity, vulgarity, profanity (including expletives and letters followed by dashes), commercial promotion, impersonations, incoherence, proselytizing and SHOUTING. Don't include URLs to Web sites.
We do not edit comments. They are either approved or deleted. We reserve the right to edit a comment that is quoted or excerpted in an article. In this case, we may fix spelling and punctuation.
We welcome strong opinions and criticism of our work, but we don't want comments to become bogged down with discussions of our policies and we will moderate accordingly.
We appreciate it when readers and people quoted in articles or blog posts point out errors of fact or emphasis and will investigate all assertions. But these suggestions should be sent via e-mail. To avoid distracting other readers, we won't publish comments that suggest a correction. Instead, corrections will be made in a blog post or in an article.
- Peduto takes down Pittsburgh’s Redd Up crew
- Curtain call: Final wintry blast due to hit Western Pa.
- Upper St. Clair woman’s death at Drexel probed as possible meningitis
- Job cuts at AGH part of ‘strategic’ process
- Fayette road crews turn focus to paving, pothole repairs
- Washington County judge: Evidence against him illegally obtained
- Redistricting spurs faceoff for Democratic state Reps. Molchany, Readshaw
- Newsmaker: Christine Jordanoff
- Donor name to be stripped from Penn Hills library
- Fox Chapel Area superintendent seeks rapport with students
- CCAC to offer early retirement incentives