A panel of three U.S. Court of Appeals judges discusses the effect of technology on different rights and the attempt to apply the Bill of Rights in the modern era.
Students examine the challenges posed by modern judges in interpreting Fourth Amendment guarantees in the presence of ever-changing technology and continual innovation, with particular focus on two recent Supreme Court cases (United States v. Jones and Riley v. California) and one current Supreme Court case (Carpenter v. United States).
PRELIMINARY DISCUSSION QUESTIONS/WRITING PROMPTS:
In 30 seconds, list as many technological innovations as you can think of that have occurred since the Fourth Amendment was ratified. How do those innovations (in general) create a challenge for modern judges trying to interpret Fourth Amendment protections?
Choose three of your innovations and indicate what search and seizure issues might arise pertaining to that technology.
DISCUSSION QUESTIONS/WRITING PROMPTS:
As mentioned by Judge Millett, much of judicial evaluation rests on evaluating or balancing governmental power and individual rights. What are the risks if courts lean too far toward governmental power? What are the risks if they lean too far toward individual rights?
Judge Millett and Judge both mentioned the 2012 “GPS case,” United States v. Jones, wherein their court and later the United States Supreme Court evaluated whether the police attaching a GPS device to a vehicle violated the Fourth Amendment. In the majority opinion, Justice Scalia wrote that: *"The Fourth Amendment provides in relevant part that '[t]he right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated.' It is beyond dispute that a vehicle is an “effect” as that term is used in the Amendment. United States v. Chadwick, 433 U. S. 1, 12 (1977). We hold that the Government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a 'search.' "It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment when it was adopted."
Do you agree that installing a GPS device on a car and monitoring its movements constitutes a search? Justify your position!
Justice Sonia Sotomayor stated her United States v. Jones concurring opinion that: "GPS monitoring generates a precise, comprehensive record of a person’s public movements that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations. See, e.g., People v. Weaver, 12 N. Y. 3d 433, 441–442, 909 N. E. 2d 1195, 1199 (2009) ('Disclosed in [GPS] data . . . will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon…')...And because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: 'limited police resources and community hostility.' Illinois v. Lidster, 540 U. S. 419, 426 (2004). Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse.”
Evaluate Riley v. California (Google Doc), a 2014 Supreme Court case related to the use of smart phone data
SCOTUS STEP-BY-STEP: Judge Andre Davis Judge Andre Davis mentioned that the sequence of judges for evaluating cases is to look at the text, tradition, and history, and then to do “tough work.” Make a “how to” poster for the SCOTUS justices to use when deciding U.S. v. Carpenter using those steps - each step should contain relevant text (what traditions, text, and history should be taken into consideration?) and an image (you may either draw an original image or copy and paste an appropriate one)
PUBLIC SERVICE ANNOUNCEMENT: Create a PSA informing teens of their Fourth Amendment rights regarding their smart phones