It was Supreme Court Justice Sonia Sotomayor whose opinion in U.S. v Jones, a case that involved the use of a GPS device on a suspect’s car, that Judge Richard Leon relied on last week to rule part of the NSA program unconstitutional. It was Sotomayor’s lonely concurrence that had the White House talking about scaling back the NSA’s spying.
It may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties,” Sotomayor wrote in 2012. “This approach 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.”
Not a single other member of the high court signed onto Sotomayor’s concurrence; her three Democratic appointed colleagues sided with a narrower one written by Justice Samuel Alito. Though all nine justices agreed that police would likely need to get a warrant to place a GPS device on a suspect’s car, it was Sotomayor who was willing to argue that modern technology had essentially changed the meaning of what privacy means when so much of our personal information and history is preserved online, and can be easily collected by the government in mass quantities. When the Framers of the Constitution wrote of “persons, houses, papers, and effects,” they could not have imagined cloud storage or cell phone location tracking.