Courts grapple with technology, privacy rights

Brian Bowling
| 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

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