This article originally appeared at PolicyMic.
On Monday, the Supreme Court unanimously ruled in the case of U.S. v. Jones that police violated the Constitution when they attached a GPS tracker to suspect Antoine Jones’ vehicle without a warrant. As one of the first major cases dealing with privacy in the digital age, this ruling is definitely a victory for civil liberties and privacy issues. The Justices, however, differed over their reasoning, and unfortunately leave a lot of ambiguity that must be resolved in order to maintain our Fourth Amendment protections. Due the sluggish pace of Supreme Court decisions, technological advances in the market may prove to be the best way to strike this proper balance between freedom and privacy.
For example, in the majority opinion (held by Justices Roberts, Kennedy, Thomas, Sotomayor and Scalia), the Court found that placement of a tracking device on the suspect’s car was a “search” because according to Scalia, “the government physically occupied private property for the purpose of obtaining information.” But they failed to maintain whether the search was “reasonable” or “unreasonable,” but instead subject to “procedural rules.” This leaves the door open for police to justify not seeking a warrant if they have “reasonable suspicion.” The minority opinion (held by Justices Breyer, Alito, Kagan and Ginsburg) agreed with the ruling but argued that a warrant was only required for prolonged surveillance (in this case, 28 days), but didn’t say whether a warrant was needed for shorter periods of time.
In a complex issue like privacy in the digital age, the Supreme Court threw up its hands and admitted that current jurisprudence and 18th century tort law of the “originalists” are unable to strike the proper balance in an age of monitoring that James Madison could have never imagined. While Justice Sotomayor argues forcefully that the “third-party doctrine” precedent set in Katz v. United States will likely stifle free speech and free expression, Justice Alito states that legislation — whether from Congress or the states — not the courts, will provide better solutions.
Justice Sotomayor is absolutely right to worry about government monitoring individuals more constantly without an update in Fourth Amendment jurisprudence, but many of the problems concerning the Fourth Amendment are due to the fact the government has so many unconstitutional laws to police us with. The PATRIOT Act, the drug war and intellectual property restrictions provide a great incentive for governments to snoop, spy, wiretap, monitor, and violate civil liberties. Besides, by the time a case involving specific technological devices makes it to the Supreme Court, the technology is obsolete anyway. The Court was inconclusive about the proper role of GPS monitoring; meanwhile, Predator drones are being used by law enforcement over the skies of U.S. cities.
It is true that we live in a time where we share private information with every email, document, online purchase, and website we visit, but technology is also a double-edged sword that may itself provide some answers to protecting privacy in the digital age. Like an Apple laptop that is constantly updating itself and plugging viruses, these threats are easily countered through the evolving ebb and flow of the technological sector. This demand for security has already created a market for encryption, anti-spam software and outlets to expose these transgressions.
While the concerns over privacy in the digital age will likely be a permanent fixture of American society, perhaps the efficiency and adaptation of the market is a better outlet for protection of civil liberties than either the Supreme Court or congressional legislation.