The reason is that Justice Scalia had a narrow view of original intent. Kyllo turned heavily on the fact that the thermal sensor was used on a home—the quintessential private place to the Framers of the Constitution. Scalia's opinion in Jones turned on the placement of the GPS device on a car—a trespass to a person's property. Hearkening back to a very old test for when a search falls under the scope of the 4th Amendment, Justice Scalia focused on the fact that putting the device on the car was a physical trespass. This led to a very narrow holding. Five justices in concurring opinions suggested a much broader approach, holding that people had a reasonable expectation of privacy in not being exposed to very extensive surveillance—even in public.Justice Scalia hearkened back to a very old test for when a search falls under the scope of the 4th Amendment
The Coming Demise of the Third Party Doctrine
Justice Scalia's opinion in Jones actually provides very little protection against government location tracking. Only the physical affixing of a GPS device to a car violates the 4th Amendment according to his view. But under the third party doctrine, the government can readily obtain GPS data from third parties that provide GPS services without a physical trespass to the car. People's location can also be tracked from their phones. Scalia's view misses a key fact: It's not the device that matters; it's the data.Jones is a bizarre case because five justices wrote or joined concurring opinions that suggested a much bolder approach to the reasonable expectation of privacy. Until Jones, U.S. Supreme Court cases had generally held in a rather binary way that there is no reasonable expectation of privacy from surveillance in public places. The five concurring justices articulated a different view that extensive surveillance—even in public—could fall under the scope of the 4th Amendment.Actually, Justice Scalia's opinion in Jones provides very little protection against government location tracking
Clapper and NSA Surveillance
The U.S. Supreme Court appears to be very close to making some dramatic changes in 4th Amendment law. With Justice Scalia's passing, a sometimes-champion of the 4th Amendment has been lost. Will the next justice also have a narrow version of originalism or will he or she have a more progressive approach? If the latter, we might see some dramatic shifts in 4th Amendment protection of government surveillance.Daniel J. Solove is the John Harlan Marshall Research Professor of Law at the George Washington University Law School. He founded TeachPrivacy, a company providing privacy and data security training.Overrulings of precedent rarely occur without a change in the Court's personnel. The only distinctive feature here is that the overruling would follow not long after the original decision. . . . Indeed, I had thought that the respect accorded prior decisions increases, rather than decreases, with their antiquity, as the society adjusts itself to their existence, and the surrounding law becomes premised upon their validity. The freshness of error not only deprives it of the respect to which long established practice is entitled, but also counsels that the opportunity of correction be seized at once, before state and federal laws and practices have been adjusted to embody it.