Privacy Rights in the Digital Age:
Precursor to a discussion with PA Superior Court Judge Jacqueline O. Shogan
The United States Constitution guarantees many individual rights: the right to speak freely, the right to assemble, the right to freely exercise one’s religion, and the right to keep and bear arms, to name a few. But does it guarantee individuals the right to privacy in their geographic movements? According to recent Supreme Court and Pennsylvania Superior Court decisions, it does in certain circumstances.
In 2012, the Supreme Court decided United States v. Jones, holding that the government’s warrantless installation of a GPS tracking device on the defendant’s car violated the defendant’s Fourth Amendment rights. The Fourth Amendment guarantees citizens the right to be free from unreasonable searches and seizures. In Jones, the government installed a GPS without a warrant, tracked the defendant’s movements for a month, and used the evidence they gathered on the GPS to convict the defendant of conspiring to sell cocaine. The Court of Appeals for the District of Columbia overturned the conviction, a decision the Supreme Court upheld because it found that the government’s act of physically occupying private property with the GPS device constituted a “search” under the Fourth Amendment.
In February 2013, the Pennsylvania Superior Court determined that law enforcement must have probable cause in order to attach and monitor a GPS tracking device to an individual’s car in Pennsylvania. See Commonwealth v. Burgos, No. 718 MDA 2012 (Feb. 20, 2013). The level of suspicion required to justify the government’s placement and tracking of a GPS device on a private vehicle was not addressed by the Supreme Court in Jones. In Burgos, the defendant was arrested on the basis of evidence gathered through a GPS device that police had installed on his truck. The court had authorized installation of the GPS device pursuant to a provision of the Pennsylvania Wiretapping and Electronic Surveillance Control Act (“Wiretap Act”), which requires only reasonable suspicion. In a motion before the trial court, the defendant argued that, in light of the Supreme Court’s decision in Jones, the installation of a GPS device on his truck violated the Fourth Amendment because the police did not obtain a search warrant. The Pennsylvania Superior Court disagreed with the defendant. The court found that probable cause was constitutionally required to install and monitor the GPS device, that probable cause existed in that case when the wiretap order was issued, and that the wiretap order served as the functional equivalent of a traditional search warrant.
Jones and its progeny are just the tip of the iceberg as courts begin to face the many issues that are arising as a result of advancements in technology and our digital dependence. In Jones, the Supreme Court intimated that many open issues exist with regard to digital tracking. Justice Alito argued in a concurring opinion that the inquiry should not be whether the government physically occupied private property but, rather, whether the government impinged upon the defendant’s reasonable expectation of privacy. Under this line of thought, the proper inquiry in Jones would have been whether the defendant had a reasonable expectation of privacy in his pattern of movements. According to Justice Alito, “[t]he use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” (emphasis added). He further suggested that other ways in which individuals are monitored; e.g., through closed-circuit video, automatic toll collection systems, and technology like OnStar, may raise Fourth Amendment issues. In a separate concurrence, Justice Sotomayor suggested that “it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” like cellular providers, internet service providers, and online retailers.
The answers to these questions will significantly impact our society in the digital age. On Monday, January 27, 2014, Judge Jacqueline O. Shogan, one of the Pennsylvania Superior Court Judges who decided Burgos, will meet with F&M students to discuss the cases and the questions they leave open. Please join us at 4:30 pm in Bonchek House Common Room for this interesting and relevant discussion!