…right about the mosaic.
Today the Supreme Court release their ruling in Jones v. US, about the placement of a GPS on a car without a warrant.
I argued in several eariler threads that this was perfectly permissible under the theory enunciated in Katz – there was no invasion of privacy in an area that society was prepared to recognize as reasonable.
The lower court offered up a novel theory --that even though any single trip a person takes in his car is visible on the public streets and thus not protected, the sum total of all such trips – the “mosiac” picture formed by the trips – is private, society should be prepared to recognize it as a reasonable expectation of privavcy, and thus it should be protected.
The Court did not adopt that theory.
Nonetheless, they overturned Jones’ conviction, on a much older theory: trespass. Prior to Katz, the touchstone for Fourth Amendment violations was physical trespass. Katz, which dealt with the government wiretapping a phone booth frequented by the accused, held that trespass is irrelevant: it’s the invasion of privacy in areas we reasonably expect privavcy.
Today’s opinion says: nope, it’s also still trespass:
Unsurprisingly, the opinion draws on Kyllo’s reasoning, since the author of the opinion was Justice Nino Scalia, who also wrote Kyllo (which held that the government’s use of thermal imaging to look at a house from outside to see what was happening inside was a search within the meaning of the Fourth Amendment.)
So – I was wrong, wrong, wrong about this outcome, for a reason that I did not predict. I am happy to see the “mosiac” theory of privacy discarded, and it’s hard to argue with the point Scalia makes – that up until comparatively recently, trespass was the key aspect of a Fourth Amendment violation.
Anyway – makes sense to me, and I just wanted to announce my predictive failure with at least similar gusto to my announcements of my predictive successes.
