Congratulations to my co-blogger, Justin Webb, whose published case note was recently cited in a brief to the Wisconsin Supreme Court. In the brief, the state is, among other issues, responding to an argument that the use of real-time tracking via GPS was unconstitutional when the search warrant specified the use of a passive GPS device (one that records data and is retrieved at a later time to obtain the location information). The device was used for four days, as opposed to multiple weeks in Jones. The case is State v. Brereton, and the AG's brief is available here (2012 WL 2160408).
Justin's note, "Car-ving out the Notions of Privacy: The Impact of GPS Tracking and Why Maynard is a Move in the Right Direction" (95 Marq. L. Rev. 751), presents the different ways courts analyzed GPS-related decisions, and suggests that the DC Circuit's use of the mosaic theory in Maynard (later styled as Jones in the SCOTUS case) is the proper approach. Here's the abstract:
In a controversial decision in 2010, the D.C. Circuit held that warrantless GPS tracking of an automobile for an extended period of time violates the Fourth Amendment. The D.C. Circuit approached the issue in a novel way, using “mosaic theory” to assert that the aggregation of information about an individual's movements, over an extended period of time, violated an individual's reasonable expectation of privacy. This Note discusses how state and federal courts have dealt with warrantless GPS tracking, and ultimately asserts that the Maynard court's decision was correct, insofar as it takes account of the interaction of changing technology and shifting societal notions of privacy. This Note urges the Supreme Court to incorporate an approach similar to Maynard within its Fourth Amendment jurisprudence. This Note concludes that failure to do so will contract already-cramped notions of privacy in the digital age, and facilitate a normative shift in conceptions of privacy that may be detrimental and irreversible.
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