My piece in the Spring 2014 edition of the Georgetown Undergraduate Law Review

1. Georgetown University
Undergraduate Law Review
Volume I, Issue I Spring 2014

2. Georgetown University
Undergraduate Law Review
Volume I, Issue I
Spring 2014
Editorial Board and Staff
Editor-in-Chief
Adrienne Jackson
Managing Editor
Morgan Birck
Assistant Editors
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William Baker
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Layout Editor
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Faculty Advisor
Honorable Thomas L. Ambro
Judge, Third Circuit, U.S. Court of Appeals

3. Privacy in the Modern Age:
Where Does the Supreme Court Stand?
Madeline Moore
College of Arts & Sciences, 2016
Abstract
Two recent Supreme Court cases—Maryland v. King (2013) and United States v.
Jones (2012)—provide insight into each Justices’ conception of privacy and its re-lationship
with modern age technology. While Maryland v. King demonstrates
Justice Kennedy and Scalia’s respective conceptions of physical privacy, the author
notes key differences in their application. In essence, Kennedy considers the differ-ing
degrees of physical intrusions into privacy, while Scalia deems any intrusion as
extreme. United States v. Jones reinforces this analysis, as Justice Scalia forcefully ad-vances
this attitude towards issues of privacy. Looking to the other members of the
Supreme Court, United States v. Jones displays Justice Sotomayor’s and Alito’s more
abstract interpretations of the Fourth Amendment. In examining the future test
case of United States v. Muhtorov, the paper briefly notes that the Supreme Court
will most likely rule evidence collected under the NSA program as impermissible,
as its collection violates the Fourth Amendment in a five-four decision: Sotomayor,
Alito, Kagan, Ginsberg, and Breyer against, versus Kennedy, Scalia, Thomas, and
Roberts in favor.
Georgetown University Undergraduate Law Review, Volume I, Issue I 9

4. Privacy in the Modern Age: Where Does the Supreme Court Stand?
Introduction
On November 18, 2013, the Supreme
Court refused to hear an appeal from The
Electronic Privacy Information Center, an
advocacy group, which argued that a Foreign
Intelligence Surveillance Court inappropriately
authorized NSA metadata collection. Turned
over by companies like Verizon, Facebook, and
Google, these electronic records held informa-tion
on nearly every telephone call made to and
from the United States over the past five years.
While it did not include the locations or con-tent
of these calls, this metadata contained their
times, numbers, and length.1 None of the Jus-tices
commented on their decision to decline,
and it remains to be seen when they will reach
an important decision in the national debate
over privacy and security. To better understand
the Justices’ current interpretations of privacy,
this paper examines two recent Supreme Court
rulings: Maryland v. King, 2013, and United
States v. Jones, 2012.2 Both cases concern the
relationship between privacy and technology in
the modern age, and this paper analyzes their
context, the Court’s majority ruling, and any
concurring or dissenting opinions. With this in-sight
into the Justices’ perspectives on privacy,
their views on the Fourth Amendment will be
briefly set against the most likely test case for
the NSA’s warrantless surveillance program—
United States v. Muhtorov—which recently
began making its way through the US courts.3
1 Bill Mears, Supreme Court Allows NSA to Con-tinue
Looking at Telephone Records for Now, CNN (Nov.
18, 2013, 10:34 AM), http://www.cnn.com/2013/11/18/
politics/supreme-court-nsa-phone-records/
2 Maryland v. King, 000 U.S. 12–207, 1, 1-18
(2012); United States v. Jones, 000 U.S. 10–1259 U.S.
1,1-14 (2011)
3 Charlie Savage, Warrantless Surveillance
Challenged by Defendant, NEW YORK TIMES York
Times. (Jan. 29, 2014, 6:43 PM), http://www.nytimes.
com/2014/01/30/us/warrantless-surveillance-chal-lenged-
by-defendant.html?_r=0.
Before looking at Maryland v. King,
it is important to understand Katz v. United
States, 1967. In this case, respondent Katz used
a public payphone to conduct illegal gambling
activity. Law enforcement collected the evi-dence
from a recording device on the outside
of the payphone which led to his conviction.
Overturning this conviction, the Supreme
Court expanded Fourth Amendment protec-tions
to include spaces in which individuals
have a “reasonable expectation of privacy.”4
In King and Jones, Justices Kennedy, Scalia,
Sotomayor, and Alito consistently reference
Katz and its influence on subsequent case law.5
It forms the basis of their arguments, and they
use it in different ways, revealing their atti-tudes
and prioritizations regarding issues of
privacy. With these in mind, this paper argues
that if the current Supreme Court were to
accept United States v. Muhtorov in the future,
they would rule against its recent activity in a
five-four decision: Sotomayor, Alito, Kagan,
Breyer, and Ginsberg opposed, Kennedy, Scal-ia,
Thomas, and Roberts in favor.
Maryland v. King: The Case
In the case Maryland v. King, the Su-preme
Court examined the use of DNA tech-nology
in law enforcement. Officers arrested
respondent King on charges of assault and pro-cessed
him in Maryland. There, officers used
a cheek swab during the booking procedure
to retrieve a DNA sample. Analysis matched
this sample to an unsolved rape from 2003
by using the Combined DNA Index System
(CODIS) which “connects DNA laboratories
at the local, state, and national level.” 6 CODIS
is “authorized by Congress and supervised by
the Federal Bureau of Investigation,”7 and it
4 Katz v. United States, 389 U.S. 347 (1967)
5 Maryland v. King, 000 U.S. 12–207, 1,1-28
(2012); United States v. Jones, 000 U.S. 10–1259 U.S.
1,1-14 (2011)
6 Maryland v. King, 000 U.S. 12–207, 1,2 (2012)
7 Id. at 2.
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5. Privacy in the Modern Age: Where Does the Supreme Court Stand?
contains both an Unsolved Crimes Collection,
in which King’s DNA match was discovered,
and a Convict and Arrestee Collection. King
was convicted for the rape, but the Maryland
Court of Appeals overturned the conviction on
the grounds that the cheek swab violated his
Fourth Amendment rights. In its decision, the
Supreme Court ruled that such DNA collection
is constitutional, upholding King’s conviction.8
Maryland v. King: Majority Ruling
Justice Kennedy authored the major-ity
opinion of the Court in Maryland v. King,
holding that DNA collection in this context
was a reasonable search, acceptable under the
Fourth Amendment. Kennedy makes three
key arguments in support of this ruling: (1)
The Government’s interest in King’s DNA
was greater than King’s expectation of pri-vacy,
(2) the Government’s use of the DNA
was explicitly for identification purposes, and
(3) use of DNA technology is consistent with
routine booking procedures.9 The specifics of
these three points reveal important elements
of Kennedy’s attitude toward privacy, which
proves more utilitarian than those expressed in
Justice Scalia’s dissention, authored on behalf
of himself and Justices Ginsberg, Sotomayor,
and Kagan.
To assert his first point, Justice Kenne-dy
establishes both the insignificance of DNA
collection as an invasion of privacy and the
gravity of the Government’s interest in such
information. He acknowledges that “using a
buccal swab on the inner tissues of a person’s
cheek…to obtain DNA samples”10 is a search,
and any invasion into the human body intrudes
upon “cherished personal security,” and should
be “subject to constitutional scrutiny.”11 Plac-ing
the swab under this scrutiny, he finds that
8 Id. at 28.
9 Id. at 2.
10 Id. at 7.
11 Id. at 7.
it is “negligible,” a trait “of central relevance
to determining reasonableness.”12 Kennedy
provides invasive surgery or the inspection of
an arrestee’s home as examples of searches
that he considers greater intrusions, continu-ing
that the swab “is a minimal one,” which
does not “increase the indignity already atten-dant
to normal incidents of arrest.”13 Indeed,
he argues that a reasonable person in police
custody should have “diminished” expectations
of privacy, because they have been “arrested
on probable cause for a dangerous offense that
may require detention before trial.”14 Here,
Kennedy draws a distinct line between the ex-pectations
of such a person and those of “oth-erwise
law-abiding citizens,” for example, a
motorist stopped at a checkpoint or a politician
tested for drug use.15
Having proved the insignificance of
a cheek swab, Kennedy presents the much
graver government interests involved in DNA
collection. DNA information is crucial to (1)
identifying the detainee and his or her crim-inal
history, (2) allowing law enforcement to
make safety decisions about their detention,
(3) allowing law enforcement to evaluate the
likelihood of attempted escape, (4) determining
bail (the threat that the detainee poses to the
public), and (5) potentially proving a convict-ed
person’s innocence.16 He stresses that it is
a common occurrence that “people detained
for minor offenses can turn out to be the most
devious and dangerous criminals.”17 For Ken-nedy,
“there can be little reason to question”
these promotions of “legitimate governmental
interests”18 which far outweigh the intrusion of
a cheek swab “in the balance of reasonableness
12 Id. at 8.
13 Id. at 26.
14 Id. at 25.
15 Id. at 25.
16 Id. at 12-17.
17 Id. at 12.
18 Id. at 10.
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6. Privacy in the Modern Age: Where Does the Supreme Court Stand?
required by the Fourth Amendment.”19
The Justice maintains that officers
analyze DNA for “the sole purpose of generat-ing
a unique identifying number against which
future samples may be matched.”20 However,
he also emphasizes the importance of knowing
“the type of person” detained, which allows
law enforcement to “make critical choices.”21
In this way, Justice Kennedy gives “identity” a
broad definition:
An individual’s identity is more than
just his name or Social Security num-ber,
and the government’s interest in
identification goes beyond ensuring that
the proper name is typed on the indict-ment.
Identity has never been consid-ered
limited to the name on the arrest-ee’s
birth certificate. In fact, a name
is of little value compared to the real
interest in identification at stake when
an individual is brought into custody. 22
This makes “identification” an umbrella term
for Kennedy, which is important to remember
when considering his statement regarding DNA
collection: “No purpose other than identifica-tion
is permissible.”23
Finally, Justice Kennedy argues that
DNA collection is not significantly different
than other booking procedures. In the past,
these have included photography, the Bertil-lon
system of body measurements, and finger
printing technology. According to Kennedy,
these “derive from different origins and have
different constitutional justifications than, say,
the search of a place.”24 A unique DNA iden-tification
number has the same function as a
19 Id. at 23.
20 Id. at 27.
21 Id. at 14.
22 Id. at 12.
23 Id. at 5.
24 Id. at 2.
fingerprint, and therefore has the same Fourth
Amendment standing. Both occur only after
“probable cause exists to remove an individual
from the normal channels of society and hold
him in legal custody,”25 neither is subject to
officer bias, and DNA laboratories adhere to
federal quality standards. The only differences
between the two are “the unparalleled accuracy
DNA provides,” and the more “rapid analysis”
available from fingerprints.26 According to
Kennedy, speed and accuracy are negligible
factors in considering constitutionality, and
running an arrestee’s DNA through the CO-DIS
Unsolved Crimes Collection is consistent
with running fingerprints through the FBI’s
Integrated Automated Fingerprint Identifica-tion
System (IAFIS). 27 In this respect, neither
booking procedure is “different than matching
an arrestee’s face to a wanted poster of a previ-ously
unidentified suspect.”28
Kennedy’s three arguments for main-taining
King’s conviction reveal two important
aspects of his general interpretation of the
Fourth Amendment. First, he maintains a very
corporeal notion of privacy that focuses on the
physical activities which constitute searches
and seizures. He does not discuss the meta-physical
invasion of privacy that occurs when
the Government extracts an unwilling indi-vidual’s
unique genetic information. Second,
Kennedy dismisses a “per se” rule of reason-ableness:
privacy violations are not intrinsi-cally
unconstitutional and cannot be assigned
a blanket Fourth Amendment standing.29 They
should always be considered in the context of
the benefits provided, suggesting that as long
as the benefits to the government are greater
than the violation, any violation is permissi-ble—
no matter how extreme. Whether there is
25 Id. at 11.
26 Id. at 13.
27 Id. at 13-15.
28 Id. at 13.
29 Id. at 10.
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7. Privacy in the Modern Age: Where Does the Supreme Court Stand?
a limit to this utilitarian attitude towards priva-cy
remains to be seen, but Justice Kennedy has
certainly not positioned himself as an advocate
of privacy for privacy’s sake.
Maryland v. King: Dissenting Opinion
Justice Scalia authored a dissention
in Maryland v. King on behalf of himself and
Justices Ginsberg, Sotomayor, and Kagan. His
counter-argument centers on three things: (1) A
rejection of Kennedy’s reasonableness test, (2)
a detailed correction of Kennedy’s assumptions
about the way in which the current CODIS
system operates, and (3) a strong warning
against the potential of the Court’s ruling to
legalize future suspicionless searches.30 These
arguments reveal a stricter interpretation of the
Fourth Amendment than Justice Kennedy’s,
but a similarly corporeal attitude toward priva-cy,
which will also be reflected in his majority
opinion in United States v. Jones.
Justice Scalia does not subscribe to
Justice Kennedy’s utilitarian reasonableness
test, which suggests that a search is justifiable
if the interests of the government are greater
than the minimal intrusion of privacy. Instead,
he defends freedom from suspicionless search-es
because a person cannot be searched for
evidence of a crime without any basis for be-lieving
that they are guilty or possess incrimi-nating
evidence. “That prohibition,” he states,
“is categorical and without exception; it lies
at the very heart of the Fourth Amendment.”31
While Justice Kennedy asserts that a person’s
expectation of privacy is greatly reduced
upon arrest, Justice Scalia emphasizes that
only weapons, easily destroyable evidence, or
evidence related to the crime of arrest can be
“objects of a search incident to arrest.”32 DNA
evidence does not fall into any of these catego-ries,
and Scalia argues that the primary purpose
30 Id. at 1(Scalia, J., dissenting).
31 Id.at 1 (Scalia, J., dissenting).
32 Id.at 4 (Scalia, J., dissenting).
of DNA collection is nothing other than “sim-ply
discovering evidence of criminal wrong-doing.”
33 He criticizes Kennedy for indulging
in a “free-form reasonableness inquiry,” which
is only appropriate if “a governmental purpose
aside from crime-solving is at stake.”34 While
Kennedy focuses on the minimal invasion of a
cheek swab, Scalia insists, “no matter the de-gree
of invasiveness, suspicionless searches are
never allowed if their principle end is ordinary
crime solving.”35 For Scalia, the collection of
King’s DNA was a suspicionless search for ev-idence
of a crime other than the one for which
he was arrested, making its conduct for ordi-nary
law-enforcement purposes in violation of
the Fourth Amendment.
Scalia attempts to disprove Kennedy’s
argument regarding the identifying purpose
of the search by elaborating on the detailed
operations of CODIS. According to Scalia,
“the CODIS system works by checking to see
whether any of the samples in the Unsolved
Crimes Collection match any of the samples
in the Convict and Arrestee Collection.”36 By
running King’s DNA through the Unsolved
Crimes Collection, law enforcement could not
have been attempting identification. All the
Unsolved Crimes Collection had to offer was
a unique DNA number—not a name or other
“identifying” information.37 As Scalia argues,
“unless what one means by “identifying”
someone is “searching for evidence that he has
committed crimes unrelated to the crime of
his arrest,” DNA collection is a suspicionless
search.38 Further, if “identifying” someone
signifies finding out what unsolved crimes he
has committed, then “identification is indistin-guishable
from the ordinary law enforcement
33 Id.at 4 (Scalia, J., dissenting).
34 Id.at 3 (Scalia, J., dissenting).
35 Id. at 5(Scalia, J., dissenting).
36 Id. at 8 (Scalia, J., dissenting).
37 Id. at 8 (Scalia, J., dissenting).
38 Id. at 5 (Scalia, J., dissenting).
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8. Privacy in the Modern Age: Where Does the Supreme Court Stand?
aims that have never been thought to justify
a suspicionless search.”39 CODIS identified
the sample from the previously unidentified
rapist by its association with King; King was
not identified by the DNA sample in CODIS.
And since the actual DNA analysis results
came back weeks after King’s arrest, Kenne-dy’s
“legitimate governmental interests” in the
DNA—numbers two through four—were not
fulfilled.40
Scalia warns against future suspi-cionless
searches by drawing attention to the
very existence of CODIS. There is no need
for “a separate, wholly redundant DNA con-firmation
of the same information” when
fingerprint identification is so efficient.41 The
real value of the DNA system in law enforce-ment
is the ability to solve unsolved crimes,
which is a purpose other than identification
for which DNA collection in standard book-ing
procedures would be considered a Fourth
Amendment violation. Resolving old cases,
says Scalia, is “a noble objective,” but it is not
as important in America as “the protection of
our people from suspicionless law-enforcement
searches.”42 He predicts that as a consequence
of the Court’s majority opinion, the DNA of
everyone arrested—for whatever reason—will
be legally entered into a national database:
Today’s judgment will, to be sure, have
the beneficial effect of solving more
crimes; then again, so would the taking
of DNA samples from anyone who flies
on an air- plane... applies for a driver’s
license, or attends a public school. Per-haps
the construction of such a genetic
39 Id. at 5 (Scalia, J., dissenting).
40 Maryland v. King, 000 U.S. 12–207 1, 1-18
(2012). These were (2) allowing law enforcement
to make safety decisions about their detention, (3)
allowing law enforcement to evaluate the likelihood
of attempted escape, and (4) determining bail.
41 Id. at 17 (2012) (Scalia, J., dissenting).
42 Id. at 17 (Scalia, J., dissenting).
panopticon is wise. But I doubt that the
proud men who wrote the charter of
our liberties would have been so eager
to open their mouths for royal inspec-tion.
43
This hypothetical scenario reveals Jus-tice
Scalia’s fierce prioritization of the Fourth
Amendment. He rejects the idea that one can
incriminate himself through his own DNA as
it is property irrelevant to a current arrest and
redundant to fingerprint identification. He sees
a slippery slope toward national information
aggregation, stored and used toward future
conviction. While he rejects almost every
aspect of Kennedy’s argument, his imagery of
the founding fathers opening their mouths for
cheek swabbing reflects a similar preoccupa-tion
with privacy in physical terms.44 Unlike
Kennedy, Scalia views any physical intrusion
as grave; he asks: “why are the ‘privacy related
concerns’ not also ‘weighty’ when an intrusion
into the body is at stake?”45 Ultimately, Scalia’s
black-and-white perception of privacy clashes
with Kennedy’s sliding scale—where the de-gree
of physical intrusion measures the degree
of privacy intrusion. In spite of this, one must
note that both interpretations initially begin
with a corporeal view of privacy, a perspective
that will be fully realized in United States v.
Jones.
United States v. Jones: The Case
In the second privacy related case of
United States v. Jones, the U.S. government in-vestigated
respondent Jones for suspected drug
trafficking by obtaining a search warrant to
install a GPS tracking device on Jones’ wife’s
Jeep. While the search warrant was limited to
ten days and within the District of Columbia,
43 Id. at 18 (Scalia, J., dissenting).
44 Maryland v. King, 12–207 U.S. 1, 18
(2012) (Scalia, J., dissenting); Maryland v. King,
12–207 U.S. 1, 26 (2012) (majority opinion)
45 Id. at 4 (Scalia, J., dissenting).
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9. Privacy in the Modern Age: Where Does the Supreme Court Stand?
law enforcement placed the device on the elev-enth
day in Maryland. As a result, the place-ment
of the device and its information collec-tion
over the following four-week period were
warrantless. This information linked Jones to
a conspirator’s stash house which contained
enough cash and cocaine to convict Jones on
multiple counts, including conspiracy to dis-tribute
and possession with intent to distribute
illegal narcotics. While Jones filed a motion to
suppress the GPS evidence, the District Court
only granted it in part by suppressing the data
collected while the Jeep was parked at Jones’
residence.46 The District Court admitted the
remaining data on the grounds that “a person
travelling in an automobile on public thorough-fares
has no reasonable expectation of privacy
in his movements from one place to another.”47
The D.C. Circuit Court then reversed Jones’
conviction, and the Supreme Court upheld this
ruling; both concluded that the GPS data col-lection
violated the Fourth Amendment.
United States v. Jones: Majority Opinion
Justice Scalia authored the opinion of
the Court in United States v. Jones on behalf
of himself and Justices Kennedy, Thomas, and
Roberts. Because of its simple physical ele-ment,
he discusses the irrelevance of a “reason-able
expectation of privacy” test in this case.48
While Katz established that “property rights
are not the sole measure of Fourth Amendment
violations,” Scalia emphasized that this idea
did not replace the Amendment’s standard
trespassory test.49 In this case, the Government
physically intruded on Jones’ car, considered
an “effect,” by placing a GPS tracking device
on its undercarriage. This allows for a fairly
simple assessment of constitutionality, because
it makes a reasonableness test unnecessary—
46 United States v. Jones, 000 U.S. 10–1259
U.S. 1,1 (2011)
47 Id. at 2.
48 Id. at 5 (majority opinion).
49 Id. at 6 (majority opinion).
the Government engaged in an actual mate-rial
intrusion. Repeatedly emphasizing Katz’
redundancy in this case, Scalia writes that it
“added to, not substituted for, the common-law
trespassory test”—it did not “narrow” or
“erode” the Fourth Amendment’s scope.50
In contrast with Jones’ situation, Scalia
provides another case of location monitoring:
United States v. Karo.51 Because respondent
Karo accepted a container with a secret “beep-er”
already intact, the Supreme Court found
he was “not entitled to object to the beeper’s
presence, even though it was used to monitor
the container’s location.” 52 Scalia mentions
that Jones, who possessed the Jeep before the
Government inserted the device, “is on much
different footing.”53 In doing so, Scalia suc-cessfully
evades the question of whether the
presence of tracking technology in a piece of
property (like a phone) at the time one takes
possession of it is an acceptance of the subse-quent
use of that technology by a third party.
In addition, Scalia reaffirms his purely physical
attitude toward privacy by offering a hypo-thetical
“traditional surveillance” of Jones that
“would have required a large team of agents,
multiple vehicles, and perhaps aerial assis-tance,”
as “our cases suggest that such visual
observation is constitutionally permissible.”54
However, as soon as the Government trespass-es
upon Jones’ car, it has violates the Fourth
Amendment. Scalia cedes that “it may be that
achieving the same result through electronic
means, without an accompanying trespass,
is an unconstitutional invasion of privacy.”55
However, he continues by arguing that “the
present case does not require us to answer that
50 Id. at 8 (majority opinion).
51 United States v. Karo, 468 U.S. 705 (1984).
52 United States v. Jones, 000 U.S. 10–1259
U.S. 1,9 (2011)
53 Id. at 9 (majority opinion).
54 Id. at 11-12 (majority opinion).
55 Id. at 11 (majority opinion).
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10. Privacy in the Modern Age: Where Does the Supreme Court Stand?
question,” evading any principle of privacy
other than physical protection against intru-sion.
United States v. Jones: First Concurrence
Justice Sotomayor concurs with Jus-tice
Scalia that for this case, a reaffirmation
of the Fourth Amendment protection against
trespassory searches suffices to overturn Jones’
conviction.56 She also warns that Justice Alito’s
approach will discount the relevance of the
physical intrusion on Jones’ Jeep, and focus
only on the Katz “reasonable expectation of
privacy” test, which “erodes that longstanding
protection for privacy expectations inherent in
items of property that people possess or con-trol.”
57 Unlike Scalia, Sotomayor accepts the
need to address the electronic use of the GPS
beyond its physical placement on the Jeep.
She recognizes that “physical intrusion is now
unnecessary to many forms of surveillance,”
and that in such cases, “the majority opinion’s
trespassory test may provide little guidance.”58
In order to offer more substantial
guidance for future cases involving electron-ic
surveillance methods, Justice Sotomayor
describes: (1) the dangers of those methods,
(2) the ways in which they can change societal
expectations, and (3) the ways in which those
expectations could be used to shape Fourth
Amendment jurisprudence.59 She points out the
connection between a person’s public and pri-vate
life. While a singular action taken in pub-lic
becomes public information, the aggrega-tion
and analysis of all of these actions reveal
private information not necessarily appropriate
to the public sphere. Indeed, “GPS monitoring
generates a precise, comprehensive record of
a person’s public movements that reflects a
wealth of detail about her familial, political,
56 Id. at 1-14 (Sotomayer, J., concurring).
57 Id. at 2 (Sotomayer, J., concurring).
58 Id. at 2 (Sotomayer, J., concurring).
59 Id. at 1-6 (Sotomayer, J., concurring).
professional, religious, and sexual associa-tions.”
60 Since the Government can cheaply
store and mine the data indefinitely, this wealth
of detail is subject to abuse. Because GPS
monitoring “proceeds surreptitiously, it evades
the ordinary checks that constrain abusive law
enforcement practices,” which are “limited po-lice
resources and community hostility.”61 Such
unrestricted power has enormous ramifications:
Awareness that the Government may
be watching chills associational and ex-pressive
freedoms... GPS monitoring—
by making available at a relatively
low cost such a substantial quantum of
intimate information about any person
whom the Government, in its unfettered
discretion, chooses to track—may “al-ter
the relationship between citizen and
government in a way that is inimical to
democratic society.” 62
Regardless of these “chilling” affects,
society would know and understand that it
is being monitored and tracked. Sotomayor
cedes that “perhaps... some people may find
the ‘tradeoff’ of privacy for convenience
‘worthwhile,’ or come to accept this ‘diminu-tion
of privacy’ as ‘inevitable.’”63 She is quite
skeptical of this idea however. She offers that
there does indeed exist “a reasonable socie-tal
expectation of privacy in the sum of one’s
public movements.”64 While some people may
have made this tradeoff, Sotomayor doubts the
existence of a societal expectation that one’s
actions “will be recorded and aggregated in a
manner that enables the Government to ascer-tain,
more or less at will, their political and re-ligious
beliefs, sexual habits, and so on.”65 She
60 Id. at 3 (Sotomayer, J., concurring).
61 Id. at 3 (Sotomayer, J., concurring).
62 Id. at 3 (Sotomayer, J., concurring).
63 Id. at 5 (Sotomayer, J., concurring).
64 Id. at 4 (Sotomayer, J., concurring).
65 Id. at 4 (Sotomayer, J., concurring).
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11. Privacy in the Modern Age: Where Does the Supreme Court Stand?
suggests that this be taken into consideration
by the Katz test.
Sotomayor references Katz to empha-size
that “what a person seeks to preserve as
private, even in an area accessible to the pub-lic,
may be constitutionally protected.”66 She
proposes that today, people relinquish personal
information to third parties, but still seek to
preserve it as private. The two are no longer
mutually exclusive, given that in the “digital
age,” it is necessary to release information in
order to carry out “mundane tasks.”67 Thus,
Sotomayor demonstrates that “it may be neces-sary
to reconsider the premise that an individ-ual
has no reasonable expectation of privacy in
information voluntarily disclosed to third par-ties.”
68 This is the difference between secrecy
and privacy. While one’s name, age, address,
etc. are not “secret” and will be voluntarily
offered to some third parties, they are still
“private” and should be protected.69 According
to Sotomayor, this kind of information “can
attain constitutionally protected status only if
our Fourth Amendment jurisprudence ceases
to treat secrecy as a prerequisite for privacy.”70
She continues: “I would not assume that all
information voluntarily disclosed to some
member of the public for a limited purpose
is, for that reason alone, disentitled to Fourth
Amendment protection.”71
These arguments mark Sotomayor’s
departure from Justice Scalia’s and Kennedy’s
preoccupation with physical privacy. Recog-nizing
that nonphysical violations are equally
grave, she offers a serious reconsideration of
the current legal interpretation of privacy in the
digital age. Unlike Scalia or Kennedy, if the
Government had not physically trespassed on
Jones’ Jeep, Sotomayor would still have over-
66 Id. at 6 (Sotomayer, J., concurring).
67 Id. at 5 (Sotomayer, J., concurring).
68 Id. at 5 (Sotomayer, J., concurring).
69 Id. at 6 (Sotomayer, J., concurring).
70 Id. at 6 (Sotomayer, J., concurring).
71 Id. at 6 (Sotomayer, J., concurring).
turned his conviction.72 She recognizes that
“technological advances... affect the Katz test
by shaping the evolution of societal privacy
expectations.”73 She gives legal credence to the
power of societal assumptions, which not only
include the protection of privacy by and from
the Government, but also an individual obli-gation
to release information to third parties.74
Following Sotomayor’s reasoning, a “volun-tary”
release of information to third parties is
really a socially obligatory one, and therefore
should be protected under the Fourth Amend-ment.
Just like Scalia, however, Sotomayor
evades an actual resolution of such questions
in this case, because “the Government’s physi-cal
intrusion on Jones’ Jeep supplies a narrow-er
basis for decision.” 75
United States v. Jones: Second Concurrence
Like Sotomayor, Justice Alito stress-es
the importance of the nonphysical action
involved in GPS surveillance, rather than the
physical trespass. He offers his concurrence
on behalf of himself and Justices Kagan,
Ginsberg, and Breyer. He clearly separates the
surveillance into two actions, writing:
The Court’s reasoning largely disre-gards
what is really important (the use
of a GPS for the purpose of long-term
tracking) and instead attaches great sig-nificance
to something that most would
view as relatively minor (attaching to
the bottom of a car a small, light object
that does not interfere in any way with
the car’s operation).76
He dismisses the trespassory test as
outdated by referencing recent case law, which
understands the Fourth Amendment as pro-
72 Id. at 1-14 (Sotomayer, J., concurring).
73 Id. at 3 (Sotomayer, J., concurring).
74 Id. at 5 (Sotomayer, J., concurring).
75 Id. at 6 (Sotomayer, J., concurring).
76 Id. at 7 (Alito, J., concurring).
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12. Privacy in the Modern Age: Where Does the Supreme Court Stand?
hibiting “every unjustifiable intrusion by the
government upon the privacy of the individu-al,”
77 rather than hinging on “the presence or
absence of a physical intrusion into any given
enclosure.”78 He argues that today’s invasions,
while not resembling “the direct and obvious
methods of oppression” that were detested by
the founders, are categorically the same.79 Fur-ther,
he emphasizes the sublimation of property
rights as the sole interest controlling against
search and seizure. They are now “but one ele-ment
in determining whether the expectations
of privacy are legitimate.”80
Alito lists four other objections to the
Court’s trespassory approach in Jones. First,
like Sotomayor, he points out that should a
trespass become unnecessary for conducting
GPS surveillance, for example if the Jeep had
a built-in GPS, then the Court’s ruling would
not provide protection.81 Second, the Court’s
ruling will result in incongruous results; if law
enforcement tracks a car for a very short period
of time using an attached GPS, the Fourth
Amendment applies.82 If they track the same
car for an extended period of time with no
physical intrusion, the Fourth Amendment does
not apply.83 Third, the ruling protects Jones as
the owner of the car. Had he not been the tech-nical
owner, than the trespass upon the Jeep
would not have been considered an intrusion
into his privacy. Fourth, he describes how the
trespassory rule provides only an outdated in-terpretation
of the Fourth Amendment in cases
involving unwanted electronic contact with
computer systems, some courts having held
that “even the transmission of electrons that
occurs when a communication is sent from one
77 Id. at 4 (Alito, J., concurring).
78 Id. at 5 (Alito, J., concurring).
79 Id. at 5 (Alito, J., concurring).
80 Id. at 5 (Alito, J., concurring).
81 Id. at 2-3 (Alito, J., concurring).
82 Id. at 5 (Alito, J., concurring).
83 Id. at 5 (Alito, J., concurring).
computer to another is enough.” 84
While Sotomayor offered guidance in
terms of what could be considered modern so-cietal
expectations of privacy, Alito argues that
today, there can be no standard expectations,
because they are “in flux.”85 For this reason, he
delegates some of the responsibility in priva-cy
matters to the legislative branch, which he
argues is better “situated to gauge changing
public attitudes, to draw detailed lines, and to
balance privacy and public safety in a compre-hensive
way.”86 Thus, his defense of the Fourth
Amendment is less physically oriented than
Kennedy’s or Scalia’s, but also less vehement.
His engagement with it is not as protective as
the others, and he deems it a more appropriate
subject for congress to tackle. Unlike the other
Jones opinions, in which Katz is fundamental,
Alito questions the validity of Katz. He argues
that its key flaw is that it “rests on the assump-tion
that this hypothetical reasonable person
has a well-developed and stable set of privacy
expectations.”87 He seems to suggest that no
such standard, reasonable person exists, at least
at present, and so no standard ruling can exist
either.
Conclusion
King shows us both Justice Kennedy’s
and Scalia’s very physical view of privacy,
and Jones especially reveals Scalia’s evasion
of any other attitude. On the other hand, Jones
displays Justice Sotomayor’s and Alito’s more
abstract interpretations of the Fourth Amend-ment,
which recognize modern, nonphysical
privacy issues. Looking at the future test
case of United States v. Muhtorov,88 issues of
84 Id. at 9 (Alito, J., concurring).
85 Id. at 10 (Alito, J., concurring).
86 Id. at 13 (Alito, J., concurring).
87 Id. at 10 (Alito, J., concurring).
88 United States v. Muhtorov, No. 12-cr-
00033-JLK 1 (D. Colo. Crim. R. 1.1. (A), filed
Sept. 21, 2012)
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13. Privacy in the Modern Age: Where Does the Supreme Court Stand?
standing will no longer present an issue as the
Justice Department notified the respondent of
evidence collected under the NSA program.89
Because the NSA did not physically intrude on
the physical property of Muhtorov’s cell phone
or Verizon’s physical property, but instead re-ceived
metadata records from Verizon without
trespass, it is reasonable to expect that Justices
Kennedy and Scalia will find this evidence
permissible under the constitution. In contrast,
Justices Sotomayor and Alito will not allow the
evidence to be admitted as its collection con-stituted
a violation of the Fourth Amendment.
They may justify this with an examination of a
reasonable expectation of privacy, not of one’s
individual public actions, but in the sum of
those actions, aggregated and analyzed.
Accordingly, the Justices in concur-rence
with Sotomayor and Alito on Jones will
likely concur with them on the NSA ruling—
Kagan, Ginsberg, and Breyer. Those in concur-rence
with both Scalia on Jones and Kennedy
on King, Thomas and Roberts, will concur
with them on the possible test case of United
States v. Muhtorov. Therefore, if the current
Supreme Court hears United States v. Muhtor-ov,
it will most likely rule evidence collected
under the NSA program as impermissible as its
collection violated the Fourth Amendment in
a five-four decision: Sotomayor, Alito, Kagan,
Ginsberg, and Breyer versus Kennedy, Scalia,
Thomas, and Roberts.
This conclusion comes with some
reservations, unique to each Justice. For Ken-nedy,
it is possible that he would rule against
the surveillance methods. His opinion on the
King case was specific to a criminal issue,
and metadata collected by the NSA pertains to
any citizen, not only those violating the law.
Therefore, he may be more sympathetic to
their privacy. Similarly, Scalia could also be
more sympathetic as he is concerned with the
89 SAVAGE, supra note 3.
potential “panopticon” of DNA information.90
Perhaps he would also find such a panopticon
of cell phone records troubling. Alito’s poten-tial
ruling against the United States depends
on his concession that the Katz test can indeed
be used to evaluate a common set of privacy
expectation in today’s rapidly evolving society.
These are all significant “ifs,” but if United
States v. Muhtorov is heard by the Supreme
Court, their views on privacy point to a defeat
for the United States and the NSA’s warrant-less
wiretapping program.
90 Maryland v. King, 000 U.S 12–207 1, 18
(2012) (Scalia, J., dissenting)
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