The Supreme Court and the Fourth Amendment -- A Wild Ride

Transcription

1 1 The Supreme Court and the Fourth Amendment -- A Wild Ride Time works changes, brings into existence new conditions and purposes. Therefore a principle to be vital must be capable of wider application than the mischief which gave it birth. This is peculiarly true of Constitutions." 1 -- Joseph McKenna, Weems v. U.S., (1910) -- Technological innovation has provided the government with advanced tools of surveillance, enabling law enforcement to better fight crime and protect homeland security, while also endangering the rights of American citizens to be protected from unreasonable searches and seizures. This tension between technology and the Fourth Amendment was recently explored in U.S. v. Jones, a decision issued by the United States Supreme Court on January 23, Police officers used a Global Positioning System to track and convict suspected cocaine dealer Antoine Jones after their search warrant had expired. The Supreme Court held that, because the device was physically attached to Jones s car, the police infringed his Fourth Amendment rights. The three opinions in U.S. v. Jones highlight the different ways that the Supreme Court has applied the Fourth Amendment in 20th and 21st century cases and reveal the need for an analytical framework to apply to a brave new world full of technological innovation. The roots of the Fourth Amendment can be traced back to the Revolutionary Era. During the occupation of the American Colonies, the British used colonial magistrates to issue general warrants granting large-scale searches of neighborhoods without limitations. These excessive searches enraged the colonists and led to debates over the scope of power the state should wield over acts of search and seizure. In February 1761, James Otis, a prominent lawyer in the Massachusetts colony, argued that unwarranted violations of privacy place the liberty of every 1 Weems v. United States, No. 217 U.S. 349, 373 (May 2, 1910) (FindLaw Cases and Codes).

2 2 man in the hands of every petty officer. 2 This debate was central to the controversy between Great Britain and the Colonies as it helped cause war. Years later, in 1789, a standard for search and seizure was defined in the Fourth Amendment of the new nation s Constitution: The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no warrants shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. (U.S. Constitution, Amendment IV) When the Founding Fathers crafted the Fourth Amendment, they sought to protect the citizen s physical person and property from unreasonable searches and seizures by the government. In all likelihood, they did not foresee a technological future when personal property would be both tangible and intangible and searches would be conducted by sophisticated electronic devices. Technology first clashed with the Fourth Amendment in the 1928 Supreme Court case Olmstead v. U.S., bringing into question the Amendment s literal definition. To track Roy Olmstead, the leader of a bootlegging operation during Prohibition, police agents put wiretaps on the eight different public telephones that Mr. Olmstead frequented. By listening in on his conversations, the police gathered much evidence of Olmstead s criminal operation. However, when they attempted to use this evidence to convict Olmstead, he argued that his Fourth Amendment rights had been violated, because the wiretaps constituted an unreasonable search. This case forced Supreme Court justices to decide if telephone conversations should be protected under the persons, houses, papers and effects clause of the Fourth Amendment. 3 2 The Free Dictionary by Farlex, 3 Legal Information Institute, s.v. "Right of Privacy: An Overview,"

3 3 The Court s 5-4 decision declared that a telephone call did not deserve Fourth Amendment protection, because a conversation is intangible and therefore could not be personal property as envisioned by the Fourth Amendment. Justice Louis Brandeis led four dissenting justices in condemning the majority s narrow-mindedness. Interestingly, almost four decades earlier, in 1890, Brandeis explored the right to privacy in a Harvard Law Review article with Samuel Warren wherein they noted: property has grown to comprise every form of possession -- intangible, as well as tangible. 4 In his dissent, Brandeis harkened back to the Revolutionary Era, quoting James Otis and describing general warrants as instruments of tyranny and oppression. 5 Brandeis continued by quoting Weems v. U.S. (1910), explaining that the Court must be forward thinking in its application of the Constitution -- our contemplation cannot be only of what has been, but of what may be. 6 He then compared the privacy expectations for a sealed letter to those of a telephone call. The mail is a public service furnished by the government. The telephone is a public service furnished by its authority. There is, in essence, no difference between the sealed letter and the private telephone message. 7 Brandeis argued that the act of wiretapping is actually more offensive than the act of tampering with mail, because a letter contains a single, one-sided correspondence, whereas a wiretapped telephone can contain multiple private communications. Brandeis also advocated the need for the exclusionary rule or the fruit of the poisonous tree doctrine. This doctrine, first adopted in Weeks v. U.S., enforces the Fourth Amendment in criminal cases by prohibiting the government from using evidence obtained by unwarranted 4 Louis Brandeis and Samuel Warren, "'The Right to Privacy,'" CSAIL, accessed March 10, 2012, last modified December 15, 1890, 5 Olmstead v. United States, No. 277 US 432 (9th Cir. June 4, 1928), 6 Weems v. United States, No. 217 U.S. 349, 373 (May 2, 1910) (FindLaw Cases and Codes). 7 Olmstead v. United States, No. 277 US 432 (9th Cir. June 4, 1928),

4 4 searches and seizures. 8 Showing his contempt for governmental hypocrisy with respects to the Fourth Amendment, Brandeis argued, If the Government becomes a lawbreaker, it breeds contempt for law; it invites every man to become a law unto himself; it invites anarchy. 9 It was not until Mapp v. Ohio in 1961 that all states were required to adopt the exclusionary rule. 10 Because this rule often allows for an accused criminal to be set free on a technicality, the rule has been criticized. In an interview that I conducted with Chris Rising, a former New York Police Department Inspector and Legal Counsel to the Police Commissioner, he described the exclusionary rule as an imperfect solution to a very serious problem. [The Exclusionary Rule] is such an absolute response which stands in the face of what police want to do -- find the truth. 11 Brandeis also showed his concern for and prediction of how technology would continue to challenge the Fourth Amendment in the future -- Ways may someday be developed by which the Government, without removing papers from secret drawers, can reproduce them in court. 12 Brandeis prescient dissent in 1928 paved the way for subsequent forward thinking in cases involving technology and the Fourth Amendment. Thirty-nine years later, in 1967, the Supreme Court agreed with Brandeis and overruled Olmstead v. U.S. in Katz v. U.S., a case that also dealt with unwarranted wiretapping of a public telephone booth. Although Justice Stewart wrote the majority opinion for the 7-1 Court, the most important precedent arose from Justice Harlan II s brilliant concurrence. He explained that a telephone booth, like a home, is a place where one should have a constitutionally protected, 8 Weeks v. U.S., No. 232 U.S. 383 (February 24, 1914) (Find Law). 9 Olmstead v. United States, No. 277 US 432 (9th Cir. June 4, 1928), 10 Mapp v. Ohio, No. 367 U.S. 643 (1961) (June 19, 1961) (Find Law). 11 Chris Rising, interview by author, Conference call via telephone, March 20, Olmstead v. United States, No. 277 US 432 (9th Cir. June 4, 1928),

5 5 reasonable expectation of privacy. 13 He then concluded that the intrusion of this protected place violated a caller s Fourth Amendment rights, because the officers did not obtain a search warrant. 14 Harlan went on to explain a twofold requirement for Fourth Amendment protection. First, a person must have an expectation of privacy and, second, that expectation must be reasonable. Therefore, a person can rely on Fourth Amendment protection in his home, but cannot rely on such protection in a crowd. Harlan declared that although a telephone booth is a public place, it becomes private when used by a person. The person using the booth expects privacy by shutting the door and paying the toll of usage. Therefore, a telephone booth can be both a private and public place. Mr. Katz rightfully expected privacy, which was violated by unwarranted bugging. Harlan s logical approach and systematic reasoning strongly support his broad interpretation of the Fourth Amendment. For thirty-nine years between Olmstead v. U.S. (1928) and Katz v. U.S. (1967), United States citizens were subjected to wiretaps without a warrant. J Edgar Hoover, the long standing First Director of the FBI at this time, publicly admitted to widespread use of wiretapping. 15 Technology clashed with the Fourth Amendment again in a 1979 Supreme Court case, Smith v. Maryland when Supreme Court justices used Harlan s analytical roadmap, but came to a different conclusion. The Maryland Police had ordered the installation of a pen register (an electronic device that records all numbers called from a particular telephone line) at the home of Michael Lee Smith, a suspected telephone harasser. When the police browsed Smith s phone 13 Katz v. United States, No. 389 U.S. 347 (9th Cir. December 18, 1967) (Legal Information Institute: Cornell University). 14 ibid 15 "ACLU History: Wiretapping: A new kind of 'search and seizure'," ACLU, accessed March 14, 2012, aclu-history-wiretapping-new-kind-search-and-seizure.

6 6 calls and saw that he had called his victims several times, they arrested him. Smith claimed that the police had violated his privacy by using a warrantless search to obtain incriminating evidence (the phone numbers he dialed). The Court decided that recording dialed phone numbers from someone s phone did not require a search warrant. Using Harlan s reasonable expectation of privacy analysis, it reasoned that the petitioner probably did not expect a sufficient level of privacy, because he knew that his phone company recorded and viewed all of the numbers that he dialed. In addition, the Court ruled that, even if the petitioner expected a level of privacy for the telephone numbers he called, that expectation was not reasonable by society s standards. Smith assumed a level of risk when he openly dialed the phone number without trying to further conceal his actions. 16 In addition to reiterating Harlan s criterion from Katz v. U.S., the Court in Smith v. Maryland created the third party doctrine, a nuance in Fourth Amendment analysis. This doctrine provides that the police are able to obtain and use records of phone numbers dialed from a phone, because they are considered business records that are the property of the service provider. In the future, this standard may lead to confusion as the disclosure of private information to third parties increases and the definition of business records evolves. The most recent Fourth Amendment and technology decision, U.S. v. Jones, was issued on January 23, Without a warrant, the police installed a GPS device on a suspect s car and tracked his location for four weeks. His geographical movement helped the police to affirm that the suspect, Antoine Jones, was in fact the leader of a cocaine distribution business. The Court held that, the attachment of a Global-Positioning-System (GPS) tracking device to an individual s vehicle, and subsequent use of that device to monitor the vehicle s movements on 16 Smith v. Maryland, No. 442 U.S. 735 (June 20, 1979),

7 7 public streets, constitutes a search or seizure within the meaning of the Fourth Amendment. 17 It unanimously agreed on the conclusion, but split 5-4 on the reasons behind the holding. This ideological split led to much excitement and anticipation in the legal world. Orrin Kerr, a George Washington University Law Professor noted, This is nine justices trying to figure out how does the Fourth Amendment apply to a new technological world and the answers are really uncertain. It's going to be a wild ride. 18 Justice Antonin Scalia, who led the five justices of the majority, declared that the police had violated Jones s Fourth Amendment rights, because they had trespassed on Jones s personal property. Scalia justified his literal interpretation of the Fourth Amendment, declaring that the case did not require the use of Harlan s analytical framework from Katz v. U.S. -- Jones s Fourth Amendment rights do not rise or fall with the Katz formulation. 19 This approach has been criticized as regressive and many argue that Scalia should have provided more guidance to judge the imminent array of Fourth Amendment technology cases to come in the next decade. 20 Scalia did, however mention the uncertain future in Fourth Amendment cases and the possibility that Harlan s framework may be needed: We may have to grapple with these vexing problems 17 U.S. v. Jones, No (January 23, 2012) (Legal Information Institute: Cornell University). 18 Orrin Kerr, Supreme Court: Warrant Needed For GPS Tracking, NPR, January 24, 2012, NPR, Court: Warrant Needed for GPS Tracking. 19 U.S. v. Jones, No (January 23, 2012) (Legal Information Institute: Cornell University). 20 -Neal Shechter, " RE-CALCULATING! : The Court's Convoluted Opinion in United States v. Jones Gives Little Guidance," American Criminal Law Review, accessed March 21, 2012, last modified February 6, 2012, %E2%80%98re-calculating%E2%80%99- courts-convoluted-opinion-united-states-v-jones- gives-little-guidance. -Berry Friedman, "Privacy, Technology and Law," New York Times, last modified January 28, 2012, in-the-gps-case-issues-of-privacy-and-technology.html?_r=1.

8 8 in some future case where a classic trespass search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here. 21 The four concurring justices, led by Justice Alito, used Harlan s framework and claimed that Antoine Jones had a reasonable expectation of privacy. Alito recognized the irrelevance of a literal interpretation of the Fourth Amendment and therefore condemned Scalia s analytical method. Physical intrusion is now unnecessary to many forms of invasive surveillance. 22 Although he resorted to Harlan s criterion, Alito addressed the faults inherent in this method, particularly the vague properties of the reasonable-expectation-of-privacy standard. He questioned how a judge can define if an expectation is reasonable. In theory, the judge should use the privacy standards of the common man, however, Alito stated, judges are apt to confuse their own expectations of privacy with those of the hypothetical reasonable person to which the Katz test looks. 23 Even if a judge thinks he or she has an accurate understanding of society s privacy standards, he or she may be wrong. In order to test the reasonable expectation of privacy standard and compare the approaches of Justices Scalia and Alito, I created an online survey through SurveyMonkey. In the survey of 146 respondents, adults (21-60 years old) had a lower expectation of privacy than children (0-21). Respondents answered the question -- Do you believe that the ability for a company to buy your personal information is an infringement on your right to privacy? 80 percent of children answered yes, while 58 percent of adults did so. Because today s youth, the generation of Facebook, shares so much personal information on the Web, I thought the opposite would be 21 ibid 22 U.S. v. Jones, No (January 23, 2012) (Legal Information Institute: Cornell University). 23 ibid

9 9 true. 24 The survey also explored the difference between the Katz standard and the common trespass approach. It showed that people generally view the physical placement of a Global Positioning System on someone s car and aerial surveillance via satellite as both violating a suspect s privacy. 25 There was only an 11 percent difference between respondents considering a physical (attaching a GPS to a car) and a visual (aerial surveillance) infringement on privacy. Using Scalia s common trespass analysis, aerial surveillance without a warrant would likely be constitutional, but, when applying the Katz standard, both methods of surveillance would appear to be unconstitutional. Later in his concurrence, Alito proclaimed that dramatic technological change can have a profound effect on the privacy expectations of the public, leading him to refer to the opinion of Howard Taft, the Chief Justice of the Court at the time of Olmstead v. U.S., who stated, the regulation of wiretapping was a matter better left for Congress. 26 Alito agreed and explained that in times of great technological change, Congress is better positioned to create privacy standards than the Supreme Court -- a legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way. 27 Justice Sotomayor agreed with Scalia that, the Government s physical intrusion on Jones Jeep supplies a narrower basis for decision, but chose to write her own concurrence. 28 She justified her decision, claiming that the Katz standard did not displace or diminish the commonlaw trespassory test that preceded it and therefore, both a literal and broad interpretation of the 24 (link to survey) -- see appendix 25 ibid 26 Olmstead v. United States, No. 277 US 432 (9th Cir. June 4, 1928), 27 U.S. v. Jones, No (January 23, 2012) (Legal Information Institute: Cornell University). 28 ibid

10 10 Fourth Amendment can be used to find in favor of Jones. 29 She subsequently addressed Justice Alito s analytical approach and voiced her own concerns about the Katz standard. Concurring with Alito, Sotomayor declared, the same technological advances... will also affect the Katz test by shaping the evolution of societal privacy expectations. 30 She went on to criticize the third party doctrine adopted in Smith v. Maryland by questioning whether this doctrine is illsuited for the modern age in which American citizens are constantly disclosing personal information to third parties. Justices Scalia, Alito and Sotomayor all offered different opinions in U.S. v. Jones that exposed shortcomings in their current tests of the Katz standard and the third party doctrine. Unfortunately, all three justices failed to propose an adequate alternative to replace the tests that they criticized. John Whitehead, an attorney, author and expert in constitutional law, criticized the Court for failing to meet its challenge of providing new Fourth Amendment guidance. By failing to address the privacy ramifications of these new technologies, the Court has done little to curb the government's ceaseless, suspicionless surveillance of innocent Americans. 31 Because the Court fell back on the Fourth Amendment s literal meaning and because of rapid innovation in technology, the government owns new devices which can monitor American citizens without a physical intrusion. It can now use drones, surveillance cameras, smart dust devices, RFIDs, cell phones, Wi-Fi data, facial recognition software and iris scanners to observe American citizens. Wireless devices such as cell phones and laptop computers are especially easy for the 29 ibid 30 ibid 31 John W Whitehead, "U.S. v. Jones: The Battle for the Fourth Amendment Continues," The Huffington Post, January 24, 2012, john-w-whitehead/ us-v-jones-surveillance-technology_b_ html?view=print&comm_ref=false.

11 11 government to trace and monitor. Notably, as of June 2011, there are more than 322 million wireless devices in use in the United States. 32 For so many reasons, the Fourth Amendment is a pressing issue. From a criminal standpoint, law enforcement must know the limits of a legal search and seizure, because if a limitation is unclear, police officers are liable to infringe on the Fourth Amendment rights of a suspect. If the police conduct an illegal search, the exclusionary rule requires the release of a suspect who could be anything from a drug dealer to a serial killer, which as Chris Rising notes, is an imperfect solution. In addition, citizens want to feel protected in the United States and confident that they are not being spied upon. The government must provide better clarity to enforce the Fourth Amendment, either through the Judiciary or Legislative branch. As technology advances, societal expectations of privacy also evolve and can make murky the protections of the Fourth Amendment. The literal meaning of the Fourth Amendment protects citizens from physical intrusion, but cannot be easily stretched to specifically protect against digital or cyber intrusion. Harlan s Katz standard attempts to broaden the Amendment s definition and better protect the citizen, but when applied, the reasonable-expectation-of-privacy standard may be too vague for modern society. Because the Supreme Court did not take advantage of its opportunity to create a new framework or to update the Katz standard in U.S. v. Jones, the Court must therefore wait until another Fourth Amendment case arises to create better guidance and clarity. Since the Court cannot control when it will receive another Fourth Amendment case, the immediate responsibility may fall to the Legislative branch. 32 U.S. v. Jones, No (January 23, 2012) (Legal Information Institute: Cornell University).

12 12 Theoretically, because Congress is made up of elected congressmen who represent different parts of the country, it should reflect and fight for the beliefs of the majority of United States citizens. Therefore, Congress, a microcosm of American society, should be able to accurately develop privacy standards which reflect the public s opinion. In reality, Congress is highly inefficient and the act of passing an updated privacy and technology bill could take a great deal of time. Fortunately, in February 2011, Patrick Leahy, a Vermont senator, founded a Judiciary Committee called Privacy, Technology and the Law. In a legislative session last year, Senator Leahy proclaimed, the explosion of new technologies and activities online, including social media, has unleashed new questions about how to protect Americans' privacy in the digital age. 33 Leahy went on to declare that the Privacy, Technology and the Law committee will complement the work that the full Committee (Congress) will continue this year. 34 While the creation of a judiciary committee is a step in the right direction, the drafting and passage of an act may not actually deliver any concrete progress in Fourth Amendment legislation. The Privacy, Technology and the Law comittee may be concerned with privacy issues related to social media and other new technologies rather than illegal searches and seizures. However, if the comittee does concern itself specifically with the Fourth Amendment, it could create a law to help update the Fourth Amendment and better limit searches and seizures in an increasingly digital age. It is not uncommon to use a legislative bill to redefine or nuance a constitutional amendment. For example, the 15th Amendment, ratified on February 3, 1870, [prevented] backsliding and [ensured] a continuing role for Congress in the eradication of racism in 33 "Sen. Franken To Chair New Subcommittee on Privacy, Technology and the Law," Al Franken : U.S. senator for Minnesota, accessed March 16, 2012, last modified February 14, 2011, 34 ibid

13 13 voting. 35 In response to this Amendment, whites found ways to continue preventing blacks from voting by use of poll taxes and literacy tests. 36 These racist requirements resulted in the long term denial of voting rights to blacks -- As late as 1940, only 3 percent of adult black southerners were registered to vote. 37 Finally, in 1965, Congress passed the Voting Rights Act, which specifically allowed for unrestricted black suffrage. As another example, the 13th and 14th Amendments also required additional laws to respond to specific actions of racial inequality-- the Civil Rights Acts of 1866, 1875 and Although legislative bills can be very effective, the process of drafting and ratifying a bill can be tedious. For example, there was almost a one-hundred year gap between the 15th Amendment and its complement, the Voting Rights Act. Moreover, legislation is not always a perfect answer to define and protect a fundamental constitutional right. Ideally, constitutional amendments that protect fundamental rights should not need updating, because fundamental rights do not change. However, due to societal evolution and, in this case, emerging technologies, amendments may require additional acts to update and support them. Based on the confusion demonstrated in U.S. v. Jones, now may be the time when the Fourth Amendment, like the 13th, 14th and 15th Amendments, requires an updated definition of illegal searches and seizures that can withstand the rapid pace of technological innovation in our digital age. The long term solution of passing a bill falls to Congress as it can better assess 35 Myrna Perez, "Voting Rights Act: The Legacy of the 15th Amendment," Brennan Center for Justice, accessed March 17, 2012, last modified June 29, 2009, 36 Eric Foner, "Freedom's Boundaries at Home and Abroad," in Give Me Liberty! third ed., by Eric Foner, ed. Steven Forman (W.W. Norton & Company, 2011), Eric Foner, "The Sixties," in Give Me Liberty! third ed., by Eric Foner, ed. Steven Forman (W.W. Norton & Company, 2011),970

14 14 societal expectations of privacy in this digital age. In the short term, the Supreme Court must continue to critically interpret the Fourth Amendment and strive to create a better modernized analytical framework. To echo Orin Kerr s remarks, the future of Fourth Amendment legislation and jurisprudence is likely to be a wild ride.

15 15 Appendix Results from children (0-21 years old) -- higher expectation of privacy

16 16 Results from Adults (21-60) -- lower expectation of privacy

17 17 Results from all Respondents -- Both surveillance methods (aerial & physical) are intrusive

18 18 Results from all respondents -- Both Surveillance Methods (aerial & physical) are Intrusive

19 19 Bibliography ACLU History: Wiretapping: A new kind of search and seizure. ACLU. Accessed March 14, Andrews, Lori. Facebook Is Using You. The New York Times, February 5, Bray, Zach. Appellate Review and the Exclusionary Rule. The Yale Law Journal Online. Accessed March 7, Last modified Couillard, David A. The cloud and the future of the 4th Amendment. ARS Technica. Accessed March 3, Last modified Existing Federal Privacy Laws. Center For Democracy and Technology. Accessed March 14, Last modified Fillingham, David. Listening in the Dark - Wiretapping and Privacy in America /. Foner, Eric. Freedom s Boundaries at Home and Abroad. In Give Me Liberty!, third ed., by Eric Foner, edited by Steven Forman. W.W. Norton & Company, The Free Dictionary by Farlex. Friedman, Berry. Privacy, Technology and Law. New York Times. Last modified January 28, Has The Fourth Amendment Been Dismantled By Technology And The Courts? Tech Dirt. Orrin Kerr. Supreme Court: Warrant Needed For GPS Tracking. NPR. January 24, NPR. Supreme Court: Warrant Needed For GPS Tracking.

20 20 Kozinski, Alex. Judge Alex Kozinski on Digital Privacy and Fourth Amendment Rights in the 21st Century. September 26, youtube. O Brien, Kevin J. Australian Law Student Faces Down Facebook. The New York Times, February 5, Perez, Myrna. Voting Rights Act: The Legacy of the 15th Amendment. Brennan Center for Justice. Accessed March 17, Last modified June 29, Pierce, Deborah S. The Fourth Amendment and Carnivore. Statement. _eff_house_carnivore.html. Privacy, Technology and the Law. United States Senate : Committee on the Judiciary. Accessed March 15, Rising, Chris. Interview by author, Conference call via telephone, March 20, Mr. Rising served 20 years with the New York City Police Department, starting as a patrol officer and advancing through the ranks to the executive position of Inspector. Over the course of his NYPD career, Mr. Rising developed a wide range of experience and expertise, serving as a legal advisor, commander, and manager of various NYPD executive, operational, investigative, and public affairs divisions. As an attorney, Mr. Rising served as Special Counsel to the Police Commissioner, providing legal, managerial, and strategic advice on matters affecting the policy, operation and the administration of the NYPD, including its response to the attacks of September 11, Mr. Rising received his Juris Doctorate from St. John s University School of Law. Mr. Rising also earned a Bachelor of Science Degree in Criminal Justice from St. John s, and since 2000 has served as an adjunct member of the University s faculty. Mr. Rising has lectured at various seminars and has appeared as a contributing analyst on CNN. Sen. Franken To Chair New Subcommittee on Privacy, Technology and the Law. Al Franken : U.S. senator for Minnesota. Accessed March 16, Last modified February 14,

21 21 Shechter, Neal. RE-CALCULATING! : The Court s Convoluted Opinion in United States v. Jones Gives Little Guidance. American Criminal Law Review. Accessed March 21, Last modified February 6, %E2%80%98re-calculating%E2%80%99-courts-convoluted-opinion-united-states-v-jones-giveslittle-guida. Smith v. Maryland. IT Law Wiki. Accessed February 24, Truly, Jonathan. Supreme Court s GPS case asks: How much privacy do we expect?. The Washington Post, November 11, United States vs. Karo. Warren, and Brandeis. The Right to Privacy. Harvard Law Review. Whitehead, John W. U.S. v. Jones: The Battle for the Fourth Amendment Continues. The Huffington Post, January 24,