Kevin Bankston and Ashkan Soltani, Tiny Constables, Learned Hands and the Economics of Surveillance: Making Cents Out of US v Jones
Comment by: Caren Morrison
Published version available here:
Workshop draft abstract:
As was made especially clear at last year’s USvJones.com competition at PLSC, deriving a clear principle from the concurrences in US v Jones finding a “reasonable expectation of privacy” against prolonged GPS tracking is a challenge to say the least. However, two features of the Alito and Sotomayor opinions point toward a potential path forward:
By concluding that GPS tracking would only violate an expectation of privacy for “most offenses”, both opinions suggest that whether or not the surveillance violates the Fourth Amendment turns on the severity of the crime, and
By focusing on the fact that such extensive surveillance would not have been possible using older technologies (absent a “tiny constable” who could hide in one’s trunk), both opinions suggest that whether a particular electronic surveillance technique is constitutional turns on whether and how it would have been replicable by analog means.
Pulled together, these strands suggest that there is an economic, or at least, calculable element of Fourth Amendment reasonableness: that someone engaging in a garden-variety crime could reasonably expect not to be electronically surveilled using a technique that would have been impossible, or, impossibly costly, using non-technological methods. Put another way, because Jones could reasonably expect that the severity of his crime would not justify the expense of extended around-the-clock physical surveillance, he therefore had a reasonable expectation of privacy against an automated, electronic version of the same surveillance.
Such an economic balancing would dovetail with how “reasonableness” is judged in the context of negligence torts, as famously articulated by Learned Hand in US v Carroll Towing. Could it be that US v Jones points towards a similarly economics-based test for reasonableness under the Fourth Amendment? If so, could it actually make sound policy, or an administrable rule? And how exactly do the costs of physically tailing someone compare to the costs of tracking them via a GPS device attached to their car—or via cell phone tracking, or even using an airborne drone? Combining legal analysis by Fourth Amendment litigator and advocate Kevin Bankston with digital security expert Ashkan Soltani’s survey of the costs of varying types of surveillance compared to their pre-technological equivalents, this paper will look at the pros and cons of such an approach.