Handed down yesterday, the United States Supreme Court's unanimous decision in United States v. Jones was certainly a win for Fourth Amendment privacy advocates. The case dealt with warrantless searches and GPS tracking devices. The court found that the government installing such a GPS system in a vehicle constituted a "search" under the Fourth Amendment and therefore requires a warrant and compliance with the terms of such a warrant.
While a victory in the continuing privacy and technology debate, a big question remains: How do we deal with privacy and technology? In a concurring opinion, Justice Sonia Sotomayor pointed out that the "reasonable expectation of privacy" shapes Fourth Amendment jurisprudence. Particularly, she honed in on the issue of what users of technology, such as a Facebook user, divulge to third parties in their use of technology:
More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties.
As the national conversation on privacy has focused on privacy in the civil legal sense, most people are unaware that what they turn over to third parties could be fair game under the Fourth Amendment. In United States v. Miller, the Supreme Court decided that information that has been turned over to a third party, in that particular case, bank records, was not subject to Fourth Amendment protection. The Supreme Court found that the plaintiff did not have a legitimate expectation of privacy in information he turned over to third parties, focusing on the transactional nature of the materials in the case.
Adding technology to the privacy equation makes an already complex visceral issue of determining what is public and what is private run haywire. It may not be fair to say that users throw away their reasonable expectation of privacy merely by signing up for a profile on a social networking site since that action is transactional in nature.
Fourth Amendment privacy lends itself frequently to its "day in court" as it applies to the government and its intrusion upon individual privacy. But privacy and its treatment in the civil context, particularly what society's view of the "reasonable expectation of privacy" is as Sotomayor discusses, will most certainly be shaped by society's use of technology and how it interacts with platforms like Facebook or Google. Since one affects the interpretation of this expectation for the other, this interplay is critical.
We have not seen a watershed case on the issue of electronic communications and privacy in our modern era: the Warshak case from several years ago held some promise in discussing the Fourth Amendment protections that could be afforded under the Stored Communications Act.
The legislative conversation and media "hoopla" that have occurred over the last two years over user privacy do matter as both attempt to create a reflection of public opinion that could be applied and considered by the courts. In this case, the "court of public opinion" could be the one that matters most.