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Defining the Scope of the 4th Amendment in a Digital Era

In United States v. Jones [enhanced version available to lexis.com subscribers], the Supreme Court announced that a warrant is required to track a suspect by attaching a GPS device to the suspect's vehicle, even though the suspects' movements are public and could be fully discovered by simple visual surveillance. The decision not only alters the court's expectation of privacy analysis, but is likely to have a widespread effect on other electronic law enforcement data collection techniques. 

In this Emerging Issues Analysis, John Castellano, deputy executive for the Legal Affairs Division in the District Attorney's Office in Queens, N.Y., writes:

"Departing from the expectation of privacy analysis so frequently invoked in the last 45 years, a majority of the Court returned to a property-based rubric, finding that the attachment of a GPS device to a car interferes with the owner's possession and thus constitutes a search of one of the suspect's 'effects' under the Fourth Amendment.

"The Court, however, left open the question of how it might apply the Fourth Amendment to law enforcement data collection that does not require a physical intrusion, such as where GPS or toll paying devices are installed or used by the owner and the information they produce are mined by law enforcement authorities. The Court suggested that the expectation of privacy analysis would apply, and four judges concurred with the majority that this would be the proper analysis. Both decisions provide important clues about this broader question, one that potentially affects countless prosecutions and that many federal and state courts will have to confront on a regular basis. The legal and practical import of the Jones decision, along with the questions left open and ways to approach those unaddressed issues, are discussed below."

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