Oh, good! A New Constitutional Theory of Privacy!

Just what this country needs.

The DC Circuit recently pondered the case of Antoine Jones. Jones, who owned a night club in Washington DC, had a GPS device affixed secretly to his car by police. Over the course of a month, police were able to show that he ended up in the same places as his alleged conspirators.

On appeal, Jones complains that the police should have gotten a warrant before attached a GPS to his car. He says that the GPS violates his reasonable expectation of privacy, as defined in United States v. Katz, 389 U.S. 347 (1967).

The government argued that Katz’s reasonable expectation of privacy was the correct standard, but that Jones didn’t have any reasonable expectation of privacy in where he was driving, because when you drive, you’re exposed to the public. The places you drive are not pieces of information you may expect to keep private. The government pointed to a pre-GPS case called United States v. Knotts, 460 U.S. 276 (1983). In Knotts, police placed a directional beeper in a load of chloroform and used the signal to track down defendant’s travels to a drug lab. The Supreme Court upheld that use, saying that:

But the DC Circuit has a different idea.

They say that even though an individual movement may be public, the sum total of the movements is not – that there is a mosiac theory of the Fourth Amendment which says that an individual piece of information may have no expectation of privacy, and another also no expectation of privacy, and still another no expectation of privacy… but when they’re all put together, there is suddenly an expectation of privacy.

Now, this kind of analysis makes sense if you’re talking about, say, classified information. But it’s not what the Fourth Amendment says.

Is it?

Too much privacy from the watchful eye of government agents is indeed a problem.

Is that what the Fourth Amendment says? Probably not. But I think I like the theory. It might apply to a lot of modern information gathering techniques that couldn’t have been foreseen when the Bill of Rights was written, which would make for some greater restrictions on surveillance that wouldn’t have been possible in the past. But I’m probably not seeing all the angles here.

Well it isn’t whether it is a good or bad thing, it is whether the government agents are constitutionally prevented from doing what they did…

My first question would be the type of technology involved. Is this sort of tracking device readily available to the public? I know GPS technology is, and I know there are ads for things you can put in your child’s car, so I guess it is pretty much available. Given that, there doesn’t seem to be a legitimate expectation of privacy involved here under current SCOTUS precedent.

A month long investigation and they can’t be bothered to get a warrant?

The police affixed a GPS device to his car. Could they attach a big magnetic yellow X on the roof too in order to better observe from a helicopter? I hope not.

Not sure about what the law says, but it seems to me that if a cop can successfully follow me and track my movements from another car, good for him. But attaching a device seems unreasonable.

I don’t think the privacy argument is very sound logic either. However, it does seem to me that by physically attaching the device to his car they may be violating the fifth amendment.

If they can legally attach a tracking device to a person(or person’s vehicle) without a warrant, does this mean they could do it to the general public at large without consequence? A tracking chip in a driver’s license would then be legal, right?

You want to propose a federal statute prohibiting it? Right there with you.

You want to claim the Constitution already forbids it? There, you lost me.


Except the Supreme Court already said that is was reasonable, in Knotts.

Some kind of deprivation of property thing?

Yes, it would be constitutional.

Did they use that beeper to track the defendant making one trip to a drug lab, or did they track the defendant for a month, like they did in this case?

Except the chipping technology and the ability to use it isn’t generally available to the population. Wouldn’t that under (insert case where Scalia talks about infra red technology and growing drugs inside your house) create sufficient of a privacy interest to be protected?

Not American… nor a lawyer; but it actually makes sense… sort of. Constitutional issues tend to go over my head, but there’s a certain logic to it. It’s not reasonable to expect to remain unobserved by someone during any one given trip, but reasonable to expect not to be observed by the same people during each and every trip you take for a month.


I think I’d have to agree with the view that there’s a point at which something that can be witnessed in public, obsessively tracked, is getting into an invasion of privacy. A stalker might get your phone number out of the phone book legally, follow you on the street in his car without going over the speed limit, take photos of you in public surreptitiously, etc. I think most people would agree that this sort of behavior, while legal and taking place in the public at any given moment, added up becomes an invasion of privacy. There’s a reasonable expectation that your movements and actions won’t be tracked with such obsessiveness – at least, unless you’re a celebrity. Having someone stalking you, regardless of whether they actually did anything with all of the data they compiled, would make someone nervous in all the same ways as knowing that someone had sneaked into their house and peaked in their things. That sort of nervousness is, I think, about as good a definition of what is or isn’t reasonably private as one can get. If a reasonable person feels like his life is being invaded by people who have no business there, and information taken that is none of their business, that’s an invasion of privacy regardless of where it takes place or what methods were used.

Can an agency of the government be charged with stalking?

There is a big difference between “should they be allowed to do that” (big emphatic FUCK NO) and “are they currently legally allowed to do that” which seems to be what Bricker is arguing.

I really don’t think you’re being fair to the rationale of court.

First things first, though: Here is a copy of the ruling.

The Court explains that the Knotts case you quoted, involved a single trip being tracked by beeper, but in the instant case, the Court said: “Here the police used the GPS device not to track Jones‘s ―movements from one place to another, (Knotts, 460 U.S. at 281), but rather to track Jones‘s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.”

They then went on to use the reasonable expectation of privacy test and determined that the entirety of someone’s movements in the vehicle over a month was not publically exposed like the movements of a single trip are. They said:

“First, unlike one‘s movements during a single journey, the whole of one‘s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one‘s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.”

Now, for the “actually exposed” determination, the court cites to numerous cases about what that means, and how it doesn’t necessarily mean “if someone could possibly find it out if they followed you around for a month.” As to the “constructively exposed” part, that’s where the court gets into the analysis of what you call “mosiac” theory. I think a much better, more accurate term, would be “cumulative”.

For comparison, if I happen to meet a lady in front of her house one morning, and tell her that I like the way she’s wearing her hair, I’m just being a friendly neighbor. But if I’m there every time she enters or leaves, and every time she opens her door, and also just happen to show up at her office every day, then I’m stalking her. There’s nothing improper about any one of the contacts taken individually, but there is something improper about all of them taken as a whole.

EDIT: When I had started typing that, nobody else had mentioned stalking yet.

IANAL so this complete WAGging, but it seems to me if they are physically using your personal property to gather information about you then that is forcing you to be self-in criminating. Let me ask this a differnt way, could they legally plant something on your physical person? Could they put some sort of tracking device in your wallet, presuming they could do it without you knowing?

Whether such a thing could be prosecuted as stalking would depend on the local definition of “stalking”. It might not be defined in terms of “privacy”. My point was in looking at whether entirely legal means of tracking someone – i.e. something that any person on the street could do – could be viewed as an invasion of privacy. If the 4th Amendment restricts the police from invasions of privacy, then they’re restricted from this sort of behavior.

type faster!!!