A man was suspected of masterminding a series of robberies. He was apprehended and convicted. On appeal he alleged the police violated his rights when they recorded his movements and locations by accessing cell phone data from his service provider. In November, that case argued before the United States Supreme Court. A decision is pending.


Fifteen years ago, a police officer wanted to know where a suspected drug dealer was going. He surreptitiously placed a GPS device on the undercarriage of the man’s car and remotely monitored his travels. He was caught and convicted. He also alleged his rights were violated and appealed the case to the Supreme Court. The Supreme Court agreed and reversed his conviction.


Are the cases similar? Sure. Well, except for the technology.


Will the cases be decided the same? Being a true lawyer, I will answer like a lawyer does. “Well, maybe, but not necessarily.”


The Fourth Amendment states, “the right of the people to be secure in their persons, houses, papers, and EFFECTS, against unreasonable searches and seizures, shall not be violated.” (emphasis added.)


In United States vs. Jones, decided in 2012 the justices of the Supreme Court decided the car owner’s Fourth Amendment rights had indeed been violated by the attachment of the GPS device to the man’s car. What makes the case interesting and what it may portend for the pending decision concerning cell phones is the majority opinion penned by Justice Scalia.


Because though all the justices agreed on the outcome, they didn’t all agree on why or how they arrived at their conclusion. And Justice’s Scalia’s opinion drew the ire of other members of the court. Though he focused on the original meaning of the Fourth Amendment, ironically some of the justices considered his approach novel.


Two intellectual tracks are at play here. One is the jurisprudence that has grown up around the Fourth Amendment since the landmark case of Katz v. United States decided in 1967. In that case the government placed a listening device on the outside of a telephone booth. (For you oldsters out there, I show my students pictures of telephone booths since many of them have never seen one!).


In the Katz case a concurring opinion established a test later decisions of the Supreme Court made the standard. It held that the person inside the phone booth had a “reasonable expectation of privacy” and the listening in by the police was a search and was illegal.


Not to overly simplify, but the term ”reasonable expectation of privacy” became the jumping off point for 50 years of litigation afterwards.


What Justice Scalia opinion in the Jones case did and which other justices found objectionable was to depart from the “reasonable expectation of privacy” test and go back to the Fourth Amendment’s language and consider the matter from a “property” viewpoint? After all it does say, “persons, property, papers and effects.” 75% of that phrase refers to property.


In referring to the English antecedents to the Fourth Amendment he cited Lord Camden who once said, “Our law holds the property of every man so sacred, that no man can set his foot upon his neighbor’s close without his leave; if he does he is a trespasser, though he does no damage at all; if he will tread upon his neighbor’s ground, he must justify it by law.”


Justice Scalia went on to discuss the “close connection” of the Fourth Amendment to property rights. He points out if that were not the case the words “Persons, houses, papers and effects,” would have been superfluous. The drafters of the Constitution were master wordsmiths. One thing they didn’t do was use superfluous language.


Justice Scalia, in the Jones case, held the automobile was an “effect” and the government’s attachment of a monitoring device to its undercarriage was an illegal search. It cannot be gainsaid that the other justices engaged in an attenuated argument to say that one has a “reasonable expectation of privacy” in the undercarriage of a car. It’s open to the road and accessible to any mechanic or member of the public who cares to bend over enough to observe its contours or walk by it while it is up on a rack for an oil change. However, when you consider the protection afforded the Fourth Amendment from a property perspective, the argument that there was an illegal search is stronger. Being an “effect”, like Justice Scalia stated, the car is protected by the Fourth Amendment and the Government would need a warrant supported by probable cause and signed by a neutral magistrate before attaching their tracking device.


Now we return to the pending decision concerning cell phones. The argument that we reasonably expect to keep the information on our cell phones private is problematical. Departing from my lawyer language, it really doesn’t hold water.


Every person with a modicum of intelligence knows the information on a cell phone is shared with hundreds if not thousands of people. If it’s out there on the Cloud, how can we say we have an expectation of privacy?   And in fact the Government in the pending case is arguing that sharing the information with the operators of the servers shows it is not expected to be kept private. One can persuasively argue that Privacy as we understand it, at least in this context is a dead concept anyway.   Just consider how much of your activity online is tracked by public and private interests. It’s why when you look on Amazon for a car cover, you all of a sudden begin receiving advertisements on Facebook about car covers.


The more logical argument to make on the pending case is to say cell phones are property: they are our “effects” and the Fourth Amendment protects them against the trespasses of the government.


Justice Scalia is gone now, but it will be interesting if any of the other justices embrace his approach. Given the rapid change in technology. The old tests are going to have to be revised in some fashion.


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