The U.S. Supreme Court probably does not have “approach/avoidance” behavior especially often with cases with possible biotechnology implications – but it sure seems so.   After watching the Court approach answering questions of the patentable subject matter of various biotech “inventions,” but then back off them, it was a bit of déjà vu all over again to read the opinions released this morning in United States v. Jones.  (Opinion available here:  US v. Jones)

To be clear, Jones was not a biosciences case, but it was a case with some possible bioscience implications as it was a case where the Court had to decide how to apply the Fourth Amendment, drafted in the 18^th century, to 21^st century technology.  Four members of the Court were willing to take up that challenge, but five were not and so, once again, we live with Supreme Court approach/avoidance.

Jones involved federal officials planting a GPS-based tracking device on a car.  The feds actually had a search warrant that allowed them to plant the device, but the warrant only authorized their action in a ten day period and in the District of Columbia.  When they finally slipped the device onto the underside of the defendant’s wife’s car (but one that she let him drive), it was 11 days after the warrant issued and they did it in Maryland.  It was thus not authorized by warrant.  The police used the device to track the car, and thus the defendant, for 28 days, compiling over 2000 pages of data on its (and his) movements.  The prosecution used the evidence in its prosecution of Jones for drug trafficking; after one hung jury, it eventually won a conviction the second time and Jones won a life sentence – and a ground for appeal.

At trial, Jones had contested the admissibility of the evidence obtained from the device but to little avail. The district court held that any data from when the car was in the (private) garage had to be excluded but that any data from its time on the public streets was to be admitted, because, after all, he had no privacy interest in his travels on public roads ­– the police could always have tailed him.

The DC Circuit reversed, holding that the planting and use of the device was an unreasonable search and seizure in violation of the Fourth Amendment.   Judge Douglas Ginsburg wrote the appellate opinion, joined by Judges Tatel and Griffith – not a wide-eyed liberal panel. The appellate decision applied the test of “reasonable expectation of privacy” from U.S. v. Katz and held that this search violated such an expectation.  As the panel said “prolonged GPS monitoring reveals an intimate picture of the subject‘s life that he expects no one to have — short perhaps of his spouse.”  The panel further held that the warrantless search was not reasonable and that the error was not harmless. It reversed Jones’s conviction.  The Court of Appeals denied a petition for rehearing en banc, but with dissenting opinions joined by from Judges Sentelle, Henderson, Brown, and Kavanagh (out of a ten member court).

This case was argued to the Supreme Court on November 8, 2011 and it was with more than a little surprise that I heard this morning that it had been decided – 10 weeks (over Christmas!) is warp speed for the Court, especially on what would seem likely to be a controversial issue.

In the event, the Supreme Court affirmed, holding unanimously that the evidence should have been excluded as a violation of the Fourth Amendment.  This would seem to indicate that the decision was not so controversial, but not all unanimous decisions are unanimous.   In this case, Justice Scalia wrote the majority opinion, joined by Justices Roberts, Kennedy, Thomas, and Sotomayor – a bare majority of five.  Justice Sotomayor joined the majority opinion but wrote her own concurring opinion.   Justice Alito wrote an opinion concurring in the Court’s judgment – but not its reasoning – joined by Justices Ginsburg, Breyer, and Kagan.

Why the sense of frustration?  Because the majority opinion ducked the hard issue.  It held that this was an unconstitutional search because the police had committed a trespass on the defendant’s car, or, actually, the car of the defendant’s wife, which he held as a bailee.  This physical invasion of a car – which qualifies as an “effect” in the Fourth Amendment’s listing of “persons, houses, papers, and effects” – while it was under the defendant’s control was enough to violate the Fourth Amendment without the need to consider whether Jones had a reasonable expectation of privacy.   The trespass/property based Fourth Amendment jurisprudence, the majority held, survived the 1968 Katz decision, which had launched the “reasonable expectation of privacy test.”  A search could violate the Fourth Amendment in either way, the Court held, and so it need not worry about the reasonable expectation test.

The problem, as Justice Alito pointed out, is not just that the Court’s test seems foolishly technical; the opinion claims that the majority makes the result depend on 18^th century tort law, now obsolete as the “trespass to chattels” cause of action today requires actual damage to the chattel, not present in this case, as well as, potentially, the marital property law of the relevant state.  No, what Justice Alito and his three liberal colleagues are concerned about is the increasingly common case where surveillance is possible with no new physical invasion of a person’s property.   The Alito concurrence points to GPS devices built into cars (the General Motors “OnStar” system or systems built into rental cars) or to electronic toll payment devices, either of which allow a car to be tracked without requiring the police to “trespass” on the car by adding anything to it.

Justice Sotomayor, in her concurrence, shares the privacy concerns of the four justices who joined Justice Alito’s concurrence in the judgment, but agrees that this tricky but important issue need not be reached in this case – the old-fashioned trespass claim is enough to resolve this one.

And so the Court comes close to grappling with the reality that new technologies are allowing much greater invasion into our privacy ­­– but pulls back from deciding whether that is constitutional or not.

The opinions are rich and repay reading, in part for the differing views of the importance of the 18^th century context on the result.  (Justices Scalia and Alito express different intuitions about a constable hiding in a person’s coach or carriage and recording its travels in a way that they may not have thought was amusing – but I did.)   Why am I writing about them in a Law and Biosciences blog?

Because technical innovations diminishing privacy are not just electronic, but also biological.   Surreptitious collection of DNA inevitably shed by each of us ­– and only in the most notional sense “abandoned” by us – is one application.  Kelly Lowenberg, a former CLB fellow, recently published an article about the use of DNA collected for purpose later searched for other purposes as another example.  (Available here.)  And Professor Nita Farahany, who visited at Stanford Law School and the CLB for 2011, will soon published in the Pennsylvania Law Review an article about, among other things, the possible neuroscience intrusions and the Fourth Amendment’s application to them.

The Court, led by Justice Scalia, dodged the question this time.  Just as the Court in Kyllo, another opinion by Justice Scalia, dodged the question of the new technology of infrared sensing by focusing on the invasion of the “house”, a core aspect of the 18^th century Fourth Amendment.  How much longer can it dodge?  Do the originalists really believe in Katz and the reasonable expectation of privacy?  Or, once technical invocations of 18^th century analogies wear off, will they hold that the Fourth Amendment is largely irrelevant to high tech governmental invasions of privacy in the 21^st century?

And, to be fair, if the four justices in the Alito opinon are ultimately joined by Justice Sotomayor and possibly other justices (in a case without a technical, property-based violation), how would they apply the Fourth Amendment to such issues, where and how does it distinguish between long-allowed human surveillance and much cheaper, faster, easier versions of the same using technology?  The end of Justice Scalia’s opinion for the Court, pointing out the difficulties in the Alito opinion’s proposed rule, is not without force.

This case will undoubtedly provoke substantial commentary.  So far, I’ve only seen Tom Goldstein’s analysis on the SCOTUS blog, which I found very enlightening.  Goldstein.   But the real action will not be in analyzing this opinion, but in the Court’s handling of cases to come.  Someday the Court will have to decide what to do about new technologies and the Fourth Amendment.  That is the space to watch.  (But don’t worry, if you don’t watch it, the government will watch it for you.)

Hank Greely

Stanford Law School