Adam Sewer, over at MSNBC, recently had a great article discussing how a US Supreme Court Justice Sonia Sotomayor's concurrence in the US v. Jones case
has become incredibly important in setting the framework for hopefully restoring the 4th Amendment. When the original ruling
came out, there was some confusion over how significant it would be. While the court agreed that the use of GPS in that case was illegal, there were varying opinions as to why. While we initially expected that a different concurring opinion (by Alito, Ginsburg, Breyer and Kagan) would become more important, over time, people have realized that Sotomayor's concurrence clearly lays out why technological change should make us rethink past precedents concerning the collection of information. It was Sotomayor who rightly noted that there's a difference between collecting a bit of info on one person, and collecting pretty much all info on everyone. And it was Sotomayor's concurrence that is being used repeatedly to push for a rethinking of these issues:
It was Sotomayor’s lonely concurrence in U.S. v Jones, a case involving warrantless use of a GPS tracker on a suspect’s car, that the George W. Bush-appointed Judge Richard Leon relied on when he ruled that the program was likely unconstitutional last week. It was that same concurrence the White House appointed review board on surveillance policy cited when it concluded government surveillance should be scaled back.
“It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks.”
While it is just a concurrence, rather than the official law of the land, the reasoning is clear and clearly is resonating, which is why it is being raised repeatedly by those looking at these new issues. Its wider inlfuence will likely boomerang back into the Supreme Court before long, where it can have a real impact towards bringing back a respect for the 4th Amendment.
“Justice Sotomayor’s concurrence in Jones was the first time a Supreme Court justice seemed to acknowledge and speak directly to that new reality,” said Catherine Crump of the ACLU, who helped write the group’s Supreme Court brief in Jones. “To have a Supreme Court Justice acknowledge that there is a difference between a few discrete pieces of information about someone and the complete records you can now gather in the era of big data made us feel like we were on the right path.”
Winkler compared Sotomayor’s concurrence in Jones to Justice Louis Brandeis’ concurrence in Whitney v. California, whose expansive interpretation of the First Amendment we now take for granted. “I think that Sotomayor’s concurrence is going to be seen much the same way,” Winkler said.
The article also quotes famed constitutional scholar Laurence Tribe (who also taught President Obama), who had complained when Sotomayor was first nominated that she is "not nearly as smart as she seems to think she is." However, now that she's been on the court for a while, Tribe has completely changed his mind and admits that he's wrong. The ruling like the one in the Jones case is part of the reason why.
“I greatly underestimated how powerful a jurist Justice Sotomayor would be. From the start, she has been an enormously impressive justice, making a major impact in cases like Jones, among many others,” Tribe wrote in an email. “I now regard her as a major force on the Court – someone who is likely to make a historic contribution – and I have no doubt that I was totally wrong in my initial expressions of doubt.”
A powerful concurrence is a good start. Now we need the rest of the Supreme Court, Congress and the executive branch to follow along...