Digital Privacy: Supreme Court’s Landmark Decision Affects Businesses Large & Small


Digital Privacy: Supreme Court’s Landmark Decision Affects Businesses Large & Small

By: Michael Bosse and Daniel J. Mitchell
January 26, 2012

The Supreme Court of the United States recently issued the most important electronic Fourth Amendment case in its history: U.S. v. Jones. In doing so, the highest court in the land signaled its long-awaited entry into the foray of data security and electronic privacy. The court’s decision, along with increased governmental regulation and numerous legislative proposals to govern our electronic lives, demonstrates that the law is catching up with the speed of technological innovation. The Supreme Court’s old privacy law construct, about a hundred years old, wasn’t created in a world of GPS, smartphones, Facebook and Twitter. That’s all about to change – and U.S. v. Jones is the first step. Individuals, small and large businesses alike will need to stay abreast of the evolving legal landscape to be protected to the maximum extent possible.

The court concluded in Jones that the government’s installation of a GPS tracking device to the underbody of a private vehicle used by a criminal suspect violated the Fourth Amendment’s prohibition on unreasonable searches. Although the court’s judgment was unanimous that the GPS device violated the Constitution, the justices were split as to their underlying reasoning. Justice Scalia, writing for the majority, concluded that the placement of the GPS on a private vehicle was essentially a trespass. But the true significance of the case for those who use electronic data on a daily basis is found in the separate opinion written by Justice Sotomayor. Sotomayor agreed with the majority but emphasized how technological advances were “shaping the evolution of societal privacy expectations.” She remarked that the current Fourth Amendment jurisprudence:

is ill-suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose phone numbers they dial or text to their cellular providers; the URLs they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers. . . . I would not assume that all information voluntarily disclosed to some member of the public for a limited purpose is, for that reason alone, disentitled to Fourth Amendment protection.

Justice Sotomayor’s opinion puts courts and all of us on notice that they are going to grapple with the privacy of electronic data on personal and employer-owned computers and smartphones. A lot of settled law in these areas is about to be challenged from numerous directions.

The pace of technological change will continue to increase and it’s bringing new questions for businesses, individuals and governments regarding digital privacy. The decision in Jones is proof that the Supreme Court has decided to weigh in on important societal debates about trading privacy rights for the convenience that the Internet gives us. As the lower courts and the legislative branch react to this new Fourth Amendment decision, we’ll continue to update you so you may make necessary adjustments to your employment manuals, social media policies, and understand where the courts are headed in one of the most important debates in our society today.