FBI’s Legal Chief Says Government Struggles with Ominous Fallout from ‘Jones’ Case

Now the Justice Department must try to salvage cases where warrantless tracking has been used -- and get ahead of an evident tectonic shift throughout electronic-communications privacy law whose scope and contours the high court left uncharacteristically wide open, Weissmann said. “The Jones decision really changed the landscape,” he said.

A memo is going out “imminently” about how GPS tracking can be used after U.S. v. Jones and about the “myriad issues” involved in seeking to “sanitize” cases in progress to keep the use of warrantless tracking that took place before the decision from getting them thrown out, he said. The decision grew out of the monitoring of a car, but it has direct implications for cases involving boats, aircraft, border work, and consent to surveillance by the owner or possessor of property, he said.

And “there’s no reason to think this is going to end” with GPS, Weissmann said. The court “resoundingly rejected” the broad bedrock concept that there’s no reasonable expectation of privacy, and so no Fourth Amendment requirement of a judge’s warrant based on probable cause, for activity and objects in public, he said. The high court didn’t expressly limit application of its reasoning, as it usually does to offer guidance, Weissmann said. The problem for law enforcers is “going to come up in a large number of cases,” he said. If a probable-cause standard is applied to gathering any electronic communications and data collection, “we're going to be stuck doing Google searches and voluntary interviews” to make criminal cases, he said.

It’s not even Justice Antonin Scalia’s majority opinion that’s the worry, Weissmann said. That was based on a physical trespass theory that doesn’t fit at all, he said. Casting the large shadow is the existence of a court majority -- Justice Samuel Alito plus three supporters of his Jones concurrence, along with Justice Sonia Sotomayor, concurring separately -- that would declare GPS tracking to violate a reasonable expectation of privacy, Weissmann said. “We have to anticipate what’s going to happen down the road” in appeals courts, he said. Underlying the creation of the concurring majority was “the specter of drone law enforcement,” Weissmann said. There’s “no longer a human check on what law enforcement can do” to accumulate “this enormous amount of data,” he said.

Jones has “huge implications,” including for collection of Internet and cellphone data, because five of the nine justices have made it clear that they won’t defer to Congress and the executive regarding complex and fast-changing technologies, said lawyer Bryan Cunningham, a former CIA and State Department official. The outcome raises the prospect that the Supreme Court may adopt a “mosaic” doctrine recognizing that collection of seemingly innocuous and disparate bits of information can threaten privacy if pieced together, he said. Fourth Amendment law has said “almost nothing about analysis of information,” and changing that would have “profound implications, Cunningham said.

"Jones is really opening up a whole new era of Fourth Amendment law,” said Jim Dempsey, the Center for Democracy & Technology’s public policy vice president. The mosaic theory, “which many of us thought was goofy, now is being embraced by Supreme Court justices,” he said. Between Jones and developments in intermediate appeals courts, matters of protection of electronic data “that seemed totally gridlocked” in Washington “with the fear of terrorism and the fear of partisanship, has suddenly in the past couple of months taken on a whole new cast,” said Dempsey, the coordinator of the broad Digital Due Process coalition to reform the federal Electronic Communication Privacy Act. He said he has rethought his opposition to taking on the doctrine that the government is entitled to information from anyone that a person has knowingly given up it up to. And Dempsey said it’s time for DOJ to come to the table to fix the statute now that provisions have been declared unconstitutional.

A federal prosecutor dissented. Matt Parrella, the chief of Computer Hacking and Intellectual Property Unit in the U.S. Attorney’s Office for California’s Northern District, said he “honestly doesn’t think” the situation “is as dire” for the government as other speakers painted it. “It’s not all that surprising to me that the decision is going to be somewhat confusing,” because it’s the product of “the real world colliding with the digital world,” he said.