Time for the Court to Become "Intimate" with Surveillance Technology

IntroductionThe growth of technology has surged in recent years.1 As a result, technology has become integrated into our everyday lives and has made us more willing to proride strangers with private information in exchange for their promise to make our interactions "broader, more intimate, more efficient, and more productive."2 Nevertheless, there is a downside to this increased interconnectedness.* * 3 The incorporation of technology into our lives comes with a price.4 The same technology that connects us to those around us allows the government to piggyback on to these connections without any additional action on our part.5 The government's ability to more easily peer into our lives, however, is subject to protections provided by the Fourth Amendment to the United States Constitution.6The Fourth Amendment honors "every man's liberty and privacy ... ."7 It provides each individual with the right to be "secure in their persons, houses, papers, and effects against unreasonable searches and seizures."8 At its core, the Fourth Amendment protects people from unreasonable government intrusion.9 Although what constitutes a "search" and a "seizure" has been the subject of much jurisprudential debate, courts have agreed that searches or seizures conducted without warrants are unreasonable.10 11 A warrant may only be issued by an impartial judicial officer that stands between the citizen and the police upon an unquestionable showing of probable cause.21 Through these barriers, the Constitution fortifies the right to privacy and ensures the protection of the citizenry from government intrusion.12The government's warrantless use of surveillance technology has challenged Fourth Amendment jurisprudence.13 Original, crude surveillance technology was limited in its usefulness.14 Such early forms of surveillance were not particularly accurate, required law enforcement to remain in close contact with the suspect, and had no way of automatically storing collected information.15 Over time, however, surveillance technology has advanced to a point such that earlier forms are almost unrecognizable.16 Current surveillance technology allows law enforcement to monitor an individual's movements both in a car and on foot, unbeknownst to the individual being monitored.17 For example, the Global Positioning System (GPS) allows law enforcement to track a vehicle's movements through a computer, unhindered by the physical limitations of police-conducted visual surveillance.18 In addition, cell-site data, a signal that every cell phone emits, has expanded surveillance outside the vehicle and provides law enforcement with accurate information about an individual's whereabouts.19These advancements in surveillance technology have far outpaced the evolution of Fourth Amendment jurisprudence.20 Many scholars have argued that the current state of Fourth Amendment jurisprudence lacks a genuine understanding of privacy given the realities of modern technology.21 These scholars argue that because there has been widespread development in forms of technology that are capable of impinging on a person's privacy, courts must interpret the Fourth Amendment broadly to adequately protect individual liberty.22 This Note proposes a means by which courts might do so.23 It argues that the U.S. Court of Appeals for the D.C. Circuit, in the 2010 case of United States v. Maynard, developed an analysis that should be applied to modern forms of surveillance technology.24 This "intimate picture" analysis balances the inherently competing goals of effectively fighting crime and upholding individual rights and freedom.25Part I of this Note introduces the development of the U.S. Supreme Court's Fourth Amendment jurisprudence and explores the influence that technology has had on Fourth Amendment protections.26 Part II addresses the technology behind GPS and examines how it is used by law enforcement to aid in surveillance.27 It then discusses how courts have addressed the issue of whether GPS surveillance constitutes a search under the Fourth Amendment. …