The Supreme Court has an opportunity next term to play catch-up in applying the Fourth Amendment to the advanced technology of surveillance. The Court has granted the Obama administration’s cert. petition seeking to overturn a well-reasoned opinion by the Court of Appeals for the D.C. Circuit requiring law enforcement to obtain warrants when secretly installing GPS tracking devices on vehicles.
This could be a mundane case or a landmark, depending on which way the justices go. The Fourth Amendment has been seriously eroded in recent decades, as documented in my book The Rights of the People: How Our Search for Safety Invades Our Liberties. The Court’s majority could continue the pattern by ruling with the government, carving out yet another exception to the warrant requirement. Or, the Court could decide to set broad new standards to redefine the “reasonable expectation of privacy” in a digital age.
The expectation of privacy is a key legal concept. The courts have ruled that where no such expectation exists, no “search” within the meaning of the Fourth Amendment occurs, and therefore no probable cause or judicial oversight is required.