Networking Customary Law

Abstract

In United States v. Jones, the U.S. Supreme Court considered whether gathering four weeks of GPS information capturing a suspect’s movement on public roads constituted an unlawful search under the Fourth Amendment of the U.S. Constitution. In two separate concurring opinions, Justices Alito and Sotomayor rejected the notion that all of a citizen’s movements in public were free from the Amendment’s protection. A unifying theme for both justices was the power of contemporary technology to aggregate isolated acts into a comprehensive knowledge of a person’s private life. Justice Alito writing on behalf of four Justices notes that, over time, the collection of “a precise, comprehensive record of a person’s public movements reflects a wealth of detail about her familial, political, professional, religious, and sexual associations.” Separately, Justice Sotomayor writes that tracking technology provides “a substantial quantum of intimate information...that enables the Government to ascertain, more or less at will, [a person’s] political and religious beliefs, sexual habits, and so on.” As in Jones, practices aggregating isolated acts into knowledge has typically focused on the impact on individuals. This Article inverts that focus. Just as aggregating isolated pieces of public information provides tremendous knowledge of individuals, it also provide tremendous knowledge as to the acts ∗ Assistant Professor of Law, LSU Law Center; Associate, University of Texas Robert Strauss Center for International Security and Law; J.D., University of Chicago, 2001; LL.M, European University Institute, 2002. The author is tremendously grateful for the helpful comments provided during faculty colloquium engagements at George Mason University School of Law, the University of Oregon School of Law, the University of Arkansas School of Law, and Santa Clara University Law School. 1 United States v. Jones, 132 S. Ct. 945 (2012); see U.S. CONST., amend. IV. 2 The concept that monitoring of “public” acts was not subject to the Fourth Amendment flows from United States v. Knotts. 460 U.S. 276 (1983). 3 Jones, 132 S. Ct at 955 (Alito, concurring), citing People v. Weaver, 12 N. Y. 3d 433, 441-442, 909 N.E.2d 1195, 1199, 882 N.Y.S.2d 357 (2009); see also Transcript of Oral Argument at 10, United States v. Jones, 132 S. Ct. 945 (2012), No. 10-1259. 4 Jones, 132 S. Ct at 925 (Sotomayor, concurring) NETWORKING CUSTOMARY LAW SULLIVAN