Friday, February 3, 2012

The Influence of the New York View of GPS Surveillance

    Back on May 12, 2009, I noted the decision of the New York Court of Appeals in People v. Weaver, 12 N.Y.3d 433 (2009), in which the Court in an opinion by Chief Judge Lippman for the majority, ruled that the government cannot install a global positioning system device (GPS) on an person's automobile without a warrant.
    The opinion harked back to Justice Brandeis' invocation of "the right to be let alone" in his prescient dissent in Olmstead v. United States, 277 U.S. 438 (1928), and noted the intrusive nature of GPS surveillance which allows the government to obtain all sorts of information about a person's private life such as "trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment, the strip club, the criminal defense lawyer, the mosque, the synagogue or church, the gay bar and on and on."
    This past November I noted that the United States Supreme Court was about to hear oral argument in U.S. v. Jones which raised the question of warrantless GPS surveillance, and I wondered whether the Court would follow Chief Judge Lippman's lead.
    Happlily on January 23rd a unanimous Superme Court did conclude that the warrantless installation of a GPS device in an automobile violates the Fourth Amendment. I will not engage in an extended discussion here of Justice Scalia's opinion for the Court, or Justice Alito's concurring opinion for four Justices. I do note, however, that in her concurring opinion Justice Sotomayor cited the above-quoted language of Chief Judge Lippman's opinion in Weaver to emphasize the intrusive nature of GPS surveillance and what it can disclose about a person's private life. 
    At a recent bar association dinner I congratulated Chief Judge Lippman on his impact on Jones. I write here with the hope that the impact of Weaver is more widely appreciated.  

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