Last night we filed an amicus brief in United States v. Pineda-Moreno, a Ninth Circuit case that could play a significant role in determining how broadly the Supreme Court’s recent GPS tracking decision, United States v. Jones, is applied to protect Americans’ privacy.
To back up a step, in January the Supreme Court issued its decision in Jones, holding that attaching a GPS device to a car and tracking its movements is a search under the Fourth Amendment. Although this conclusion was unanimous, the court issued three separate decisions that are something of a puzzle to fit together.
1) Writing for five justices, Justice Scalia relied on common-law trespass doctrine to hold that intruding onto a person’s property (in this case his vehicle) and gathering information (in this case a record of his movements) is a search under the Fourth Amendment. 2) Writing for four justices, Justice Alito agreed that the government had conducted a search, but held that it was the prolonged nature of the tracking itself, rather than any trespass, that implicated the Fourth Amendment. 3) Justice Sotomayor both joined Justice Scalia’s opinion and filed a separate concurrence explaining that she agreed with Justice Alito that at least long-term tracking is a search under the Fourth Amendment. (She also had some interesting things to say about the viability of the court’s older Fourth Amendment doctrines in the face of the dramatic technological changes of the past 20 or so years, but they’re not relevant here.)
via www.aclu.org
