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Eroding Fourth Amendment Protections in the Face of Advancing Technology?

As technology advances and becomes more ubiquitous in daily life, more opportunities emerge for using technology to invade people’s privacy – whether it be through tracking someone’s movements through the Global Positioning System technology on his or her cellular phone, using satellite surveillance, infra-red imaging or looking at information that a person stores in cloud storage. Courts struggle to keep pace with technological advances and the impact they have on Fourth Amendment protections against unreasonable search and seizure and its warrant requirements. Recent court cases and legislation proposals could have a huge impact on the extent of Fourth Amendment protections of privacy.

In April 2011, the Department of Justice petitioned the U.S. Supreme Court to hear a Washington D.C. case that would resolve the split among circuit appellate courts about whether authorities need a warrant to track a suspect’s movements with the aid of G.P.S. technology. In June 2011 the Court granted certiorari and many believe that the G.P.S. warrant case has the potential to be one of the most important decisions of the decade.

Some circuits have held that police need warrants to track suspects with G.P.S., reasoning that 24 hour monitoring of a G.P.S. device constitutes a search for the purposes of the Fourth Amendment, so authorities need a warrant to install such a device on a suspect’s car. The court in the Washington D.C. case noted that rarely would authorities monitor a suspect 24 hours a day over the course of a month in a traditional tailing scenario and the data that authorities could gather by tracking a person’s movements for so long – such as which church he or she attends or which political groups he or she affiliates with – have huge implications for the protection of people’s civil rights.

Other circuit courts viewed the issue differently, such as a Florida court in the eleventh circuit which held that a defendant police suspected of drug trafficking had no reasonable expectation of privacy in the outside of his vehicle, where police had placed a G.P.S. tracking device to monitor his movements, and therefore the protections of the Fourth Amendment do not apply. Additionally, the court noted that courts agree there is no legitimate expectation of privacy in one’s movements on public roads. Other courts have reasoned that using G.P.S. is no different than physically tailing a suspect and therefore police do not need a warrant for it.

In response to the DOJ’s petition to the Supreme Court, lawmakers proposed legislation that would clarify warrant requirements with regard to G.P.S. In June 2011, two members of the House of Representatives proposed a bill that would require authorities to have a warrant supported by probable cause before they could obtain geolocational information, such as the type provided by G.P.S. devices. The bill would also prohibit private businesses, such as cell phone companies, from disclosing such data without customers’ consent. The authors of the bill drafted it so that it would closely track existing rules regarding requirements and procedures for obtaining warrants for wiretaps in an effort to aid law enforcement officials in their conduct.

The more that technology embeds itself into people’s daily lives, the more opportunities will present themselves for people to use data gathered from technology in court cases. The appearance of such data may seem harmless enough at first, but without clear standards governing the acceptable use of such data, people’s privacy rights slowly begin to erode – until the Fourth Amendment’s protections against unreasonable search and seizure are left nothing more than an empty shell.