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Abstract

Katz v. United States, 389 U.S. 347 (1967), established that a Fourth Amendment “search” occurs only when government conduct violates “a subjective expectation of privacy that society recognizes as reasonable.”  The Katz test, by its very wording, hinges upon society’s actual expectations of privacy, expectations that are fluid and case-specific.  However, when courts analyze “search” claims, particularly in cases involving sophisticated technologies, courts often rely upon analogies to prior “search” cases from an earlier technological era.

This Article argues that analogical reasoning to cases of an earlier technological era is a flawed approach for resolving Fourth Amendment claims, and that the actual privacy expectations of today’s society should instead control.  This argument is supported by two lines of Katz cases.  The first line of cases is the GPS tracking cases decided prior to United States v. Jones, 2012 WL 171117 (Jan. 23, 2012).  In these cases, courts often relied upon analogies to investigative activities far removed from the particular form of surveillance at hand, such as trailing a car by vehicle.  Yet, as the five concurring Justices in Jones recognized, an officer trailing a car turn-by-turn is fundamentally distinct from the long-term monitoring of a vehicle by GPS, making the analogy a flawed substitute for the inquiry required by Katz.  The second line of cases derives from extension of Smith v. Maryland, 442 U.S. 735 (1979), a case establishing the proposition that society does not reasonably expect privacy in information voluntarily disclosed to third parties.  In recent years, Smith has been extended by analogy to a range of distinct forms of communication, including e-mail, text messages, and internet usage, where courts have echoed the reasoning of Smith and held that one cannot reasonably expect privacy in the addressing information associated with those types of communications where that type of information has been knowingly conveyed to a third-party provider.

In Jones, all nine Justices agreed that the Jones holding would not apply to methods of investigation capable of producing the same type of information as provided by GPS that do not require physical trespass, such as tracking one’s movements by cell phone.  With Jones unable to resolve these claims, the Smith assumption of risk rationale is seemingly dispositive.  However, in her Jones concurrence, Justice Sotomayor doubted whether the Smith assumption of risk rationale accurately reflects the privacy expectations of today’s society.  Thus, it is critical to examine whether the Smith assumption of risk rationale is valid.

Responding to Justice Sotomayor’s hypothesis, this Article summarizes an original empirical study that seeks to uncover the actual views of society on these issues.  The results of this empirical study are striking.  Most significantly, the results indicate that most respondents would not permit GPS tracking in the absence of a warrant, particularly with respect to the type of suspect at issue in Jones (a suspected drug dealer), results which empirically validate the unanimous Jones ruling.  In addition, the results refute Smith’s assumption of risk rationale by revealing that society today does indeed recognize a legitimate expectation of privacy in information voluntarily conveyed to third parties, including so-called addressing information.  As this Article contends, this original empirical evidence supports Justice Sotomayor’s hypothesis, and should be considered in the next generation of electronic tracking in which the Government obtains electronic tracking information directly from a third-party, such as a cell phone provider.

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