Great news. Even better, the ruling was unanimous, although there was a split on why warrantless GPS tracking violates the Fourth Amendment.
The Supreme Court on Monday unanimously ruled that the police violated the Constitution when they placed a Global Positioning System tracking device on a suspect’s car and tracked its movements for 28 days.
But the justices divided 5-to-4 on the rationale for the decision, with the majority saying that the problem was the placement of the device on private property. That ruling avoided many difficult questions, including how to treat information gathered from devices installed by the manufacturer and how to treat information held by third parties like cellphone companies.
The minority found the tracking itself to violate the Fourth Amendment, which I think is a more satisfying rationale. In her own concurring opinion, Justice Sotomayor went even further. (PDF)
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medi- cations they purchase to online retailers.
Perhaps, as JUSTICE ALITO notes, some people may find the “tradeoff” of privacy for convenience “worthwhile,” or come to accept this “diminution of privacy” as “inevitable,” post, at 10, and perhaps not. I for one doubt that people would accept without complaint the warrantless disclosure to the Government of a list of every Web site they had visited in the last week, or month, or year. But whatever the societal expectations, they can attain constitutionally protected status only if our Fourth Amendment jurisprudence ceases to treat secrecy as a prerequisite for privacy. I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.
I think it’s probably time for me to concede that I was wrong about Sotomayor. (See here, here, here, and here.) Not only has she not been a liability in criminal justice cases, you could make a strong argument that in her short time on the court she’s been better on these issues than any other justice. (Despite his libertarian reputation, you could also argue that Thomas is the worst.) She is definitely now the justice who is most wary of the death penalty.
I don’t think it was unreasonable of me to be wary, given Sotomayor’s background and how she was sold to the public. (Remember, Biden told a gather of cops and prosecutors not to worry about Sotomayor, because “she’s got your back.”) But so far, it’s nice to be proven wrong.
MORE/CORRECTION: Orin Kerr points out that the court did not rule that the government needs a warrant before attaching a GPS device, which means my headline is wrong. (Actually, it was wrong even aside from that; the majority only ruled on the application of the device to a car, not the act of tracking.) The majority ruled only that the placement of the device constituted a search for Fourth Amendment purposes. They didn’t rule whether conducting such a search without a warrant would be unreasonable. So this looks to be a rather narrow ruling. Alas.
The Sotomayor portion of the post still stands, though.
MORE: Here’s an even more pessimistic take on today’s decision.