# Oh, good! A New Constitutional Theory of Privacy!

**URL:** <https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942>\
**Category:** Great Debates\
**Created:** [August 11, 2010, 4:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942 "2010-08-11T16:06:12Z")\
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**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\
**Post date:** [August 11, 2010, 4:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/1 "2010-08-11T16:06:12Z")

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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:

> [@](#):
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> Monitoring the beeper signals did not invade any legitimate expectation of privacy on respondent’s part, and thus there was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment. The beeper surveillance amounted principally to following an automobile on public streets and highways. A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.  
> .  
> .  
> .  
> A police car following Petschen at a distance throughout his journey could have observed him leaving the public highway and arriving at the cabin owned by respondent, with the drum of chloroform still in the car. This fact, along with others, was used by the government in obtaining a search warrant which led to the discovery of the clandestine drug laboratory. But there is no indication that the beeper was used in any way to reveal information as to the movement of the drum within the cabin, or in any way that would not have been visible to the naked eye from outside the cabin. Just as notions of physical trespass based on the law of real property were not dispositive in Katz v. United States, 389 U.S. 347 (1967), neither were they dispositive in Hester v. United States, 265 U.S. 57 (1924).
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> We thus return to the question posed at the beginning of our inquiry in discussing Katz, supra; did monitoring the beeper signals complained of by respondent invade any legitimate expectation of privacy on his part? For the reasons previously stated, we hold it did not. Since it did not, there was neither a “search” nor a “seizure” within the contemplation of the Fourth Amendment.

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?

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