Did My iPhone Steal My Privacy?

The United State Supreme Court has not quite decided what constitutes an expectation of privacy in this new Facebook, Twitter and Global-Positioning-System (GPS) world.

In a decision issued in January 2012, United States v. Jones, the justices agreed that police who physically placed a GPS device on a suspect’s car without a warrant had violated his Fourth Amendment rights. The majority opinion, penned by Justice Scalia and joined by a strange bedfellow — Justice Sotomayor, along with Chief Justice Roberts, and Justices Thomas and Kennedy — reached its decision without much fuss. “The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.“ Because there was this physical intrusion, the majority said it had no reason to further explore what an expectation of privacy might be in these modern digital days.

Surprisingly Justice Alito wrote a concurring opinion, joined by the Court’s liberal members: Justices Breyer, Ginsburg and Kagan.

• Alito questioned the majority’s analysis as being too narrow, claiming it ignores the implication of the technology that permits surveillance electronically without trespass. Changing technology means changing expectations of privacy among reasonable people. According to Alito, we might agree to give up privacy for convenience.

• Justice Sotomayor wrote a separate concurring opinion. She worried that storage of long-term surveillance and mining can have a chilling effect. “I would ask whether people reasonably expect that their movements will be recorded and aggregated in a manner that enables the Government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on.”

These changing expectations of privacy have great importance in protecting constitutional rights from government intrusion. Lawyers with experience handling constitutional rights cases will know how to raise and litigate these important issues to curb government excesses.