Back to Katz: reasonable expectation of privacy in the Facebook age.

• Author: Plourde-Cole, Haley
• Position: Company overview

Introduction I. Government Surveillance and the Fourth Amendment: An Inconsistent History A. The Evolution of the Fourth Amendment in the Face of Changing Technology 1. Katz and its Progeny: Defining Reasonable Expectations of Privacy 2. Modes of Fourth Amendment Analysis B. Cell Phones as Tracking Devices: The Implications of the Third Party Doctrine Under the Fourth Amendment II. "The End of Privacy'--or Not?: The Emerging Split Over Government Surveillance A. Cases Holding GPS Surveillance Does Not Require a Warrant 1. Circuit Courts Finding No Search or Seizure 2. State Courts Finding No Search or Seizure B. Cases Holding GPS Surveillance Requires a Warrant 1. State Courts Lead Off the Pro-Warrant Analysis 2. The Bourgeoning Split: The District of Columbia Court of Appeals Weighs In C. The Intersection of GPS and Cell Phone Surveillance Case Law 1. Background: Cell-Site Technology, Statutory Authority and Case Law 2. Cases Holding Both Prospective and Historical Cell-Site Information Require a Warrant III. Reviving Privacy: Why GPS Surveillance Violates the Fourth Amendment and Should Require a Warrant A. "The Nature of the Act": Why the Installation and Monitoring Capabilities of GPS Technology Must be Viewed Together B. GPS Surveillance Constitutes a Seizure Under the Fourth Amendment C. GPS Surveillance Constitutes a Search Under the Fourth Amendment 1. Exhibiting Subjective Expectations: The Difficulty of Katz's First Prong i. The Probabilistic Model ii. The Mosaic Theory 2. What Would Facebook Say? How Society Governs the Second Prong of Katz i. The Effect of Public Awareness and Use of GPS Technology ii. Recent Privacy Invasions Produce a Demand for Greater Control D. One Standard for All: Preserving Consistency in the Warrant Requirement Conclusion INTRODUCTION

On October 3, 2010, during a routine trip to the auto repair shop, a California student discovered a strange device attached to the back of his Ford Lincoln LS Sedan near the exhaust pipe. (1) The mechanic removed the device and later that day the student's friend posted photographs of it on the popular website Reddit.com, asking users, "[d]oes this mean the FBI is after us?" (2) His post continued, "[I] am pretty confident it is a tracking device by the FBI but my friend's roommates think it is a bomb ... any thoughts?" (3) The Reddit.com users' responses suggested that it was indeed a tracking device--specifically, a Global Positioning System (GPS) device called the Guardian ST820, manufactured for law enforcement and military use only by a company called Cobham. (4) Surely enough, the FBI showed up at the student's door just two days later asking for their device back. (5) The student obliged and the agents asked him several questions, indicating during the conversation that they had been tracking him for three to six months. (6) In the end, they let him go with a handshake. No need to call your lawyer, they reassured him: "Don't worry, you're boring." (7)

Meanwhile, the users of Reddit.com reacted with a mix of surprise and disgust at the student's discovery of a tracking device on his car. "Is it legal for the police/FBI to track anyone they feel like in the U.S.?" (8) "That's more than a little terrifying." (9) "This is officially the most insane thing I've ever seen on Reddit." (10) As a matter of fact, several months earlier the Ninth Circuit Court of Appeals held that law enforcement could attach such a device to a car while it was parked in a driveway and monitor it for several months without a warrant. (11) The issue has yet to come before the United States Supreme Court, although the Court addressed a different type of tracking in United States v. Knotts, in which it held that the government could monitor an electronic "beeper" placed in a can of chemicals to track a suspect on public roads without first obtaining a warrant. (12) In weighing the various policy implications of its ruling, however, the Court noted that "different principles may be applicable" when twenty-four hour surveillance or other "drag-net" law enforcement practices were possible. (13) Twenty-six years later, the proverbial Greek chorus of the legal community has spoken: "this time has come." (14) In fact, the government now has several ways to conduct twenty-four hour surveillance of virtually every citizen in this country, provided they drive a car or use a cell phone. (15) In the first instance, the government can attach a Global Positioning System device to a suspect's car and monitor his movements for an unlimited amount of time--with or without a warrant, depending on the jurisdiction. (16) Developed by the United States Department of Defense in the 1970s, the Navigational Satellite Timing and Ranging Global Positioning System (GPS) allows a receiver on earth to communicate with satellites that circle the earth on six orbital paths, and can typically calculate location within two meters. (17) GPS devices can be smaller than three inches wide, attached to objects such as vehicles, airplanes, and containers, and outfitted with wireless transmitters for remote monitoring. (18) Once attached to the suspect's vehicle, the device operates constantly, recording the vehicle's location at all hours and transmitting the information to law enforcement computers. (19)

In the second instance, the government may access similar information by compelling disclosure of location data from a cell phone service provider through a court order or a search warrant. (20) Cell phones are now able to provide even more precise twenty-four hour surveillance of citizens than are vehicles, given that a cell phone stays with an individual at nearly all times. (21) However, a cell phone does not even require a GPS chip to provide twenty-four hour surveillance capabilities; rather, because cell phones use radio signals to communicate between the users' handsets and the telephone network, the network can calculate the location of active phones at any time, without any user action. (22) Although both methods of surveillance access similar information and are similarly intrusive, they have yet to receive much parallel legal analysis in either scholarship or judicial opinions. This is most likely due to the fact that cell phone information is governed by numerous federal statutes and the "Third Party Doctrine," (23) whereas GPS surveillance of vehicles has no statutes on point and remains undecided by the nation's highest court. Recently however, several judges have begun to draw parallels between these types of government actions due to the similarities of the privacy interests at stake. (24)

The question of whether the Fourth Amendment's warrant requirement applies to these types of government actions is governed in part by the "Katz test," which asks whether the individual has a "reasonable expectation of privacy" in the area being searched. (25) Complicating the issue of government surveillance is the increased public use of this type of technology and the ever-increasing exposure of personal information to third parties. Many vehicles are sold with GPS devices, such as OnStar, already installed. (26) The cell phone is now a portable computer, outfitted with email, music players, Internet, and GPS technology. (27) In the latest "Smartphones," GPS location features are used in a myriad of applications, such as street directions, mapping, finding local restaurants, and even locating other cell phone users. (28) The popular mobile telephone application "foursquare" permits users to affirmatively broadcast their location by "checking in" at a given location, such as a bar or restaurant, and share their location with friends and other users of the service. (29) Other applications like "Google Latitude" and Facebook's "Places" similarly allow users to share their location with friends. (30) Meanwhile, in other types of privacy encroachments, Google's email service "Gmail" searches its users' message content to determine which advertisements will appear on the sidebar of a user's inbox. (31) Most recently, Google has taken on the task of recording images of street corners in every major city in the world for "Google Street View." (32)

This rapid expansion of interactive technology begs the question whether increasing public awareness and use of this kind of technology should affect the legal interpretation of an individual's "reasonable expectation of privacy" in Fourth Amendment jurisprudence. Should private companies' level of access to this type of information determine the bar at which "reasonableness" is set? In light of the burgeoning circuit split regarding whether GPS surveillance of vehicles constitutes a search and seizure in the wake of the District of Columbia Circuit Court's decision in United States v. Maynard, (33) this Note will examine this dynamic, including how legal decisions regarding twenty-four hour surveillance of vehicles can be informed in part by the jurisprudence and legislative action regarding twenty-four hour surveillance of cell phone location data. Furthermore, this Note will examine shifting ideas around an individual's reasonable expectation of privacy given the increased consent to private use of personal information through GPS devices on vehicles, cellular phones, and in conjunction with social networking sites. (34)

Part I of this Note will discuss the evolution of Fourth Amendment jurisprudence in reaction to advancing technology, the Supreme Court and circuit courts' disposition in dealing with electronic "beeper" tracking (the technology that predated GPS), and the legal doctrine governing the government's use of cellular phones to conduct surveillance of individuals both retroactively and in real-time. (35) Part II will examine the developing split among the federal circuits and state courts over whether GPS surveillance of vehicles constitutes a search, as well as the parallel concerns raised in recent published opinions by...