“Jones”ing for Privacy Mandate, Getting a Technology Fix – Doctrine to Follow

Download Full Text PDF

While the Jones Court held unanimously that the Government’s use of a GPS device to track Antoine Jones’s vehicle for twenty-eight days was a Fourth Amendment search, the Justices disagreed on the facts and rationale supporting the holding. Beyond the very narrow trespass-based search theory regulating the Government’s attachment of a GPS device to Jones’s vehicle with the intent to gather information, the majority opinion does nothing to constrain government use of other tracking technologies, including cell phones, which merely involve the transmission of electronic signals without physical trespass. While the concurring opinions endorse application of the Katz reasonable expectation of privacy test to instances of government use of tracking technologies that do not depend on physical trespass, they offer little in the way of clear, concrete guidance to lower courts that would seek to apply Katz in such cases. Taken as a whole, then, the Jones opinions leave us still “Jonesing” for a privacy mandate. As of the writing of this Article, Congress has not been successful in passing legislation that would regulate government use of tracking technologies. Athird regulator of government power has emerged, however, in the form of technology itself, specifically in new(ish) methods an individual or group of individuals can use to make it more difficult, in some cases perhaps impossible, for law enforcement to obtain the information it seeks. While waiting for more definitive action from the courts and Congress, such “privacy enhancing” anonymization and encryption technologies can provide a temporary “fix” to the problem of ever-expanding police powers in the digital age, insofar as they make law enforcement investigations more difficult and expensive, thereby forcing law enforcement to prioritize some investigations and, perhaps, de-emphasize or drop others. Moreover, at a time when cybersecurity is a national security priority and recommended “best practices” include the use of encryption technologies to protect, among other things, U.S. intellectual property, law enforcement is likely to face continued instances of “Going Dark” as it attempts to intercept communications in the face of the increasing availability and use of encryption technologies. As Congress considers possibilities for expanding law enforcement interception capabilities, it will be forced to accommodate the complex dualistic properties of technologies that, on one hand, bolster our national security against certain kind of threats while, on the other, they limit or thwart law enforcement’s ability to fulfill its traditional public safety function of investigating crimes.

Stephanie K. Pell, "Jones"ing for Privacy Mandate, Getting a Technology Fix - Doctrine to Follow, 14 N.C. J.L. & Tech. 489 (2013), available at http://ncjolt.org/wp-content/uploads/2013/06/13_Pell_Final_14.2.pdf.

The North Carolina Journal of Law & Technology has adopted the Open Access Program, a part of the Scholar’s Copyright Project created by Science Commons. Authors designate the conditions under which their articles are licensed. By downloading articles, you agree to comply with the license terms specified. Please contact NC JOLT at eic.ncjolt@gmail.com with permissions inquiries.