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.  

A Brandeis Appeal

It is always interesting, and sometimes fascinating, to see the legal work a United States Supreme Court Justice did before he went on the Court. I was, therefore, pleased to recently come upon an appeal Louis D. Brandeis handled during his many years as a very successful Boston attorney.

In Train v. Boston Disinfecting Co., 144 Mass. 523, 11 N.E. 929 (1887), the firm of Warren & Brandeis represented the appellee paper companies which objected to a regulation of the Boston board of health which required that rags which entered the city to be used in the manufacture of paper had to be disinfected. Apparently the companies objected that the Boston Disinfecting Company was granted a monopoly to do the disinfection. They also objected that the rags arriving in Boston harbor had already been disinfected elsewhere, so the disinfection by the Boston Disinfecting Company was unnecessary and costly to the paper companies.

While the paper companies were successful in the trial court, on appeal Brandeis did not prevail: the appellate court concluded that under the city charter the city council could delegate to the board of health the authority to make regulations necessary for the public health.

What makes the appeal interesting is that Brandeis raised the sort of claims on behalf of the paper companies which were to take on greater constitutional meaning in the 20th century: that the health regulation interfered with interstate commerce and violated due process of law. Brandeis' later well known opposition to business monopolies is also a subtext here.

Brandeis' partner Samuel Warren was the co-author with Brandeis of the 1890 Harvard Law Review article, "The Right of Privacy," which many maintain is the single most influential law review article ever written.