Civil Rights, Supreme Court

Sotomayor on surveillance: Ahead of the curve

The Wall Street Journal’Law Blog and other outlets made news of a recent appearance by Justice Sonia Sotomayor at the Oklahoma City University School of Law.

Her remarks covered an array of subjects, but the comment grabbing headlines had to do with drones and surveillance technology.

Here’s an excerpt:

There are drones flying over the air randomly that are recording everything that’s happening on what we consider our private property. That type of technology has to stimulate us to think about what is it that we cherish in privacy and how far we want to protect it and from whom. Because people think that it should be protected just against government intrusion, but I don’t like the fact that someone I don’t know . . . can pick up, if they’re a private citizen, one of these drones and fly it over my property.

Sotomayor noted some of these technological advances were “frightening” and that, if left unchecked, they could reach “Orwellian” levels. She called for more involvement from the public in debates surrounding privacy—suggesting perhaps that major reforms are needed.

None of this is a new concern for Sotomayor. Even before the Edward Snowden disclosures revealed the extent to which the National Security Agency amasses data from average Americans, the justice had expressed skepticism at the reach of technology in the hands of government.

In United States v. Jones, a 2012 case dealing with GPS surveillance, Sotomayor wrote at length about her reservations with the technology, and how it could be used for way more than merely tracking a person or his motor vehicle.

“GPS monitoring generates a precise, comprehensive record of a person’s public movements,” she wrote, in a way “that reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.”

This statement matters because Jones only dealt with GPS tracking under the Fourth Amendment, the usual vehicle for constitutional discussions surrounding privacy. (The Supreme Court later quoted this language word for word in Riley v. California, its landmark ruling on cellphone searches earlier this summer.)

But to Sotomayor, the knowledge that the state “may be watching” could have a chilling effect on other spheres protected by the Constitution, like the people we associate with and our expressive conduct. She portended that the invasion of those areas with “unfettered discretion” may forever change the dynamic “between citizen and government in a way that is inimical to democratic society.”

All of this was pre-Snowden, pre-Glenn Greenwald, and pre-outrage about the NSA, secret courts, and the so-called surveillance state.  Sotomayor’s new remarks on drones touch on something deeper: how our privacy relates with private actors. The Facebooks. The Googles. The many service providers who offer free stuff in exchange for a glimpse into a person’s private life.

The Constitution is of no help with any of that. Neither does it protect against other people’s drones flying over your property. But it can curb government surveillance.

This may explain why Sotomayor used Jones to suggest a new way of looking at privacy under the law—one that, at the very least, puts a check on government authorities. The standard: “a reasonable societal expectation of privacy in the sum of one’s public movements.” Under this view, Sotomayor would examine “whether people reasonably expect that their movements will be recorded and aggregated in a manner” that allows the government to piece together a profile of virtually any citizen it wants.

Scholars call this a “mosaic theory”—or whether it’s reasonable for the government to paint a portrait of a person based on bits and pieces of data collected over a period of time. If it isn’t, it’s illegal, and the government needs a warrant.

But the mosaic theory is just a theory; it’s not the law in matters of privacy. The Supreme Court has yet rule whether such bulk collection of personal data is a “search” subject to rigorous constitutional protections. And if it does, which is likely, it will be a major constitutional breakthrough.

Lower courts have begun to grapple with that very question. Earlier this month, a Manhattan appeals court heard arguments from the ACLU and the federal government in a lawsuit seeking to invalidate the NSA’s mass call-tracking program. A sister court in Washington, D.C., is set to hear similar arguments in a separate suit in November.

However those courts come out will determine whether the Supreme Court gets involved. And if things get to that point, it will take Sotomayor and at least four of her colleagues to give us an idea of whether the Constitution and society tolerate mass surveillance, drones, and the brave new world those things represent.


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