Jacob Sullum on the very narrow grounds used by the majority to decide US v. Jones:
“If you win this case,” Supreme Court Justice Stephen Breyer told Deputy Solicitor General Michael Dreeben during oral argument in U.S. v. Jones last fall, “there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” That prospect, Breyer said, “sounds like 1984.”
Fortunately, the government did not win the case. But the Court’s unanimous decision, announced on Monday, may not delay Breyer’s 1984 scenario for long. Unless the Court moves more boldly to restrain government use of new surveillance technologies, the Framers’ notion of a private sphere protected from “unreasonable searches and seizures” will become increasingly quaint.
[. . .]
The majority therefore concluded that it was unnecessary to resolve the question of whether Jones had a “reasonable expectation of privacy” regarding his travels on public roads. By contrast, the four other justices, in an opinion by Samuel Alito, said he did, given that investigators tracked all his movements for a month — a kind of surveillance that can reveal a great deal of information about sensitive subjects such as medical appointments, psychiatric treatment, and political, religious, or sexual activities.
While Scalia’s approach draws a clear line that cops may not cross without a warrant, it does not address surveillance technologies that involve no physical intrusion, such as camera networks, satellites, drone aircraft, and GPS features in cars and smart phones. If police had tracked Jones by activating an anti-theft beacon or following his cell phone signal, they could have obtained the same evidence without touching his property.
