32. See id. at 288 (Stevens, J., concurring in judgment) (“[The majority] suggests that the Fourth Amendment does not inhibit the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them. But the Court held to the contrary in Katz v. United States.” (internal quotation marks omitted) (citations omitted)).
33. Kyllo, 533 U.S. at 29 (thermal heat detector); id. at 43 (Stevens, J., dissenting).
34. Id. at 34 (majority opinion).
35. Id. at 40.
36. See Jeffrey W. Childers, “Kyllo v. United States: A Temporary Repreive from Technology-Enhanced Surveillance of the Home,” N.C. L. Rev. 81 (2003): 759–62 (arguing that the thermal-imaging devices at issue in Kyllo are becoming more prevalent and reasonably priced and should that continue “the ‘not in general public use’ standard could very soon undermine the Fourth Amendment protection that Kyllo purportedly provides”); Peter Swire, “Proportionality for High-Tech Searches,” Ohio St. J. Crim. L. 6 (2009): 752 (reviewing Christopher Slobogin, Privacy at Risk: The New Government Surveillance and the Fourth Amendment (2007)) (explaining that Slobogin calls the “general public use” test the “Wal-Mart test” because “the cutting edge technology of one year is on the discount shelf at Wal-Mart the next”); Rhett Allain, “The Seek Thermal Infrared Camera for iPhone and Android,” Wired, Oct. 17, 2014, www.wired.com/2014/10/seek-thermal-infrared-camera-iphone-android/; Kyllo, 533 U.S. at 37 n.3 (quoting National Law Enforcement and Correction Technology Center, www.nlectc.org/techproj/); Melanie Reid, “Grounding Drones: Big Brother’s Tool Box Needs Regulation Not Elimination,” Rich. J.L. & Tech. 20, art. 9 (2014): 3 (citing the many ways in which domestic drones are used); see also William Baude and James Y. Stern, “The Positive Law Model of the Fourth Amendment,” Harv. L. Rev. 129 (2016): 1831 (arguing that whether the Fourth Amendment applies to government use of thermal-imaging cameras should depend “on whether an ordinary citizen would breach any legal duty by attempting to do the same thing in the same circumstances”); Laura Sydell, “As Drones Fly in Cities and Yards, So Do Complaints,” NPR, May 12, 2014, www.npr.org/sections/alltechconsidered/2014/05/12/311154242/as-drones-fly-in-cities-and-yards-so-do-the=complaints (discussing the prevalence of drones in San Francisco).
37. Jones, 132 S. Ct. at 948.
38. See id. at 952n6 (leaving open the question of the constitutionality of “dragnet type law enforcement practices” like twenty-four-hour surveillance); id. at 956 (Sotomayor, J., concurring) (arguing for the relevance of the length of GPS monitoring and the robustness of the data captured by GPS tracking, but giving no indication of how long is too long or how much data is too much); id. at 964 (Alito, J., concurring in judgment) (arguing that long-term GPS tracking crosses a line, but giving no indication of when GPS tracking becomes long-term).
39. Id. at 940–51 (majority opinion).
40. See, e.g., Matt Taibbi, “Apocalypse, New Jersey: A Dispatch from America’s Most Desperate Town,” Rolling Stone, Dec. 11, 2013, www.rollingstone.com/culture/news/apocalypse-new-jersey-a-dispatch-from-americas-most-desperate-town-20131211 (“One hundred and twenty-one cameras cover virtually every inch of sidewalk [in Camden, New Jersey] … Planted on the backs of a fleet of new cruisers are Minority Report–style scanners that read license plates and automatically generate warning letters…”); William M. Bulkeley, “Business Technology: Chicago’s Camera Network Is Everywhere,” Wall St. J., Nov. 17, 2009, www.wsj.com/articles/SB10001424052748704538404574539910412824756 (explaining that Chicago’s police department links its own 1,500 cameras with thousands of other cameras placed throughout the city by other government agencies and the private sector); Chris Woodyard and Jayne O’Donnell, “Your Car May Be Invading Your Privacy,” USA Today, Mar. 25, 2013, www.usatoday.com/story/money/cars/2013/03/24/car-spying-edr-data-privacy/1991751/.
41. Jones, 132 S. Ct. at 964 (Alito, J., concurring in judgment) (“We need not identify with precision the point at which the tracking of this vehicle became a search…”) Equally mysterious was Justice Alito’s suggestion that the test for what constitutes a “search” might vary from one offense to the next, an entirely novel proposition. Id. The confusion among lower courts post-Jones is considerable. Compare, e.g., United States v. Skinner, 690 F. 3d 772, 779–80 (6th Cir. 2012) (holding that three days of tracking cell phone location data is not a search and that no warrant is required), and United States v. Davis, 785 F. 3d 498, 513, 515–16 (11th Cir. 2015) (holding that the release of historical cell site data is not a search and that no warrant required), with Tracey v. State, 152 So. 3d 504, 525–26 (Fla. 2014) (holding that the use of cell phone location data is a search and that a warrant required), and United States v. Graham, No. 12-4659, 2015 WL 4637931, at *11–12 (4th Cir. 2015) (holding that the release of more than two hundred days of historical cell site location data constitutes a search and that a warrant is required).
42. Jones, 132 S. Ct. at 963–64 (Alito, J., concurring in judgment); W. H. Parker, “Surveillance by Wiretap or Dictograph: Threat or Protection?: A Police Chief’s Opinion,” Calif. L. Rev. 42 (1954): 734.
43. Katz, 389 U.S. at 361 (Harlan, J., concurring); see also Rubenfeld, “The End of Privacy,” supra note 24, at 107 (arguing that the Court escaped the circularity of the Katz test by “root[ing] individuals’ privacy expectations in widespread social norms drawn from ‘outside of the Fourth Amendment’” (quoting Rakas v. Illinois, 439 U.S. 128, 143n12 (1978))); David Alan Sklansky, “Too Much Information: How Not to Think About Privacy and the Fourth Amendment,” Calif. L. Rev. 102 (2014): 1119–20 (arguing that the best way to understand Katz’s reasonable expectations test is to understand privacy as respect for a socially constructed “sphere of individual sovereignty” and to define “what counts as disrespect” for the sphere as “to a great extent, a matter of convention.”). See generally, Robert C. Post, “The Social Foundations of Privacy,” Calif. L. Rev. 77 (1989): 962 (arguing that the common law tort of the invasion of privacy protects social norms); Lior Jacob Strahilevitz, “A Social Networks Theory of Privacy,” U. Chi. L. Rev. 72 (2005): 930–31 (arguing that in the context of tort law, the social norms of dissemination inform what courts consider “highly offensive to a reasonable person,” the standard for a violation of the tort law of privacy).
44. See Katherine J. Strandburg, “Home, Home on the Web and Other Fourth Amendment Implications of Technosocial Change,” Md. L. Rev. 70 (2011): 114–16 (arguing that the distinction between Katz and Olmstead was that the former Court recognized “the need to adopt the Fourth Amendment’s protections to technology-mediated social change,” like the ubiquity of the telephone and its use for deep and private conversations, while the latter Court did not); Ric Simmons, “Why 2007 Is Not Like 1984: A Broader Perspective on Technology’s Effect on Privacy and Fourth Amendment Jurisprudence,” J. Crim. L & Criminology 97 (2007): 535 (party lines); Susan W. Brenner, “The Fourth Amendment in an Era of Ubiquitous Technology,” Miss. L.J. 75 (2005): 20 (quoting Arthur Woods, “Police Espionage in a Democracy,” The Outlook, May 31, 1916, 113: 235); Katz, 389 U.S. at 352.
45. State v. Rose, 909 P. 2d 280, 282, 285–86 (Wash. 1996); id. at 288–89 (Johnson, J., dissenting).
46. Greenwood, 486 U.S. at 40n4 (alteration in original) (quoting Editorial, “Trash,” Wash. Post, July 10, 1975, at A18); id. at 52 (Brennan, J., dissenting) (second alteration in original) (quoting Howard Flieger, “Investigative Trash,” U.S. News & World Rep., July 28, 1975, at 72; Editorial, “Trash,” supra); see also, e.g., Florida v. Riley, 488 U.S. 445, 450 (1989) (holding as not a search an officer’s flyover, in a helicopter at 400 feet, of the defendant’s greenhouse, located on his property); United States v. Anderson-Bagshaw, 509 Fed. App’x 396, 404–405 (6th Cir. 2012) (finding pole video camera overlooking Bagshaw’s backyard constitutionally permissible because it was visible from the publicly accessible lot where the pole was placed); United States v. Brooks, 911 F. Supp. 2d 836, 843 (D. Ariz. 2012) (denying motion to suppress evidence because the government had permission to install its camera, which only acted to “enhance their sense of sight”); People v. Lieng, 119 Cal. Rptr. 3d 200, 211 (Ct. App. 2010) (finding night vision goggles “do not penetrate walls, detect something that would otherwise be invisible, or provide information that would otherwise require physical intrusion”); United States v. Vogel, 428 N.W. 2d 272, 275 (S.D. 1998) (finding it permissible for a state trooper to fly over the defendant’s geodesic dome home with a zoom lens camera). But see, e.g., United States v. Houston, No. 13-09, 2014 WL 259085, at *3 (E.D. Tenn., Jan. 23, 2014) (finding video pole camera’s surveillance of the rear of Houston’s mobile home unreasonable because it continued for ten weeks).
47. Chris Lydgate and Nick Budnick, “RUBBISH! Portland’s Top Brass Said It Was OK to Swipe Your Garbage—So We Grabbed Theirs,” Willamette Week, Dec. 24, 2002, www.wweek.com/portland/article-1616-rubbish.html; State v. Galloway, 109 P. 3d 383, 383–84 (Or. App. 2005) (finding the Portland Police Department’s search and seizure of Officer Gina Marie Hoesly’s garbage violated Article I, Section 9 of the Oregon Constitution).
48. Noam Cohen, “Law Students Teach Scalia About Privacy and the Web,” N.Y. Times, May 17, 2009, www.nytimes.com/2009/05/18/technology/internet/18link.html; Kashmir Hill, “Justice Scalia Responds to Fordham Privacy Invasion!,” Above the Law, Apr. 29, 2009, 9:52 a.m., http://abovethelaw.com/2009/04/justice-scalia-responds-to-fordham-privacy-invasion/ (quoting Justice Scalia).
49. See Colb, “What Is a Search?,” supra note 25, at 126 (2002) (critiquing Smayda v. United States, 352 F.2d 251 (9th Cir. 1965), which deemed public bathroom stalls a “public space” and accordingly found that evidence obtained by park rangers by cutting a hole over each stall and photographing patrons was admissible); Pineda-Moreno, 617 F.3d at 1123 (Kozinski, J., dissenting).
50. Jones, 132 S. Ct. at 948; Rose, 909 P.2d at 282.
51. See Reid, “Grounding Drones,” supra note 36, at 3–5.
52. David J. Roberts and Meghann Casanova, Int’l Ass’n of Chiefs of Police, Automated License Plate Recognition Systems: Policy and Operational Guidance for Law Enforcement (2012), 5, 23, www.iacp.org/Portals/0/pdfs/IACP_ALPR_Policy_Operational_Guidance.pdf; ACLU, You Are Being Tracked: How License Plate Readers Are Being Used to Record Americans’ Movements (2013), 7, www.aclu.org/files/assets/071613-aclu-alprreport-opt-v05.pdf.
53. International Association of Chiefs of Police, Privacy Impact Assessment Report for the Utilization of License Plate Readers (2009), 21, www.theiacp.org/Portals/0/pdfs/LPR_Privacy_Impact_Assessment.pdf; Jon Campbell, “License Plate Recognition Logs Our Lives Long Before We Sin,” L.A. Weekly, June 21, 2012, www.laweekly.com/news/license-plate-recognition-logs-our-lives-long-before-we-sin-2175357.
54. Jones, 132 S. Ct. at 964 (Alito J., concurring); Timberg and Nakashima, “FBI’s Search for ‘Mo,’” supra note 10 (quoting Christopher Soghoian).
55. Timberg and Nakashima, “FBI’s Search for ‘Mo,’” supra note 10 (quoting Christopher Soghoian); Jones, 132 S. Ct. at 964 (Alito, J. concurring in judgment).
56. Greenwood, 486 U.S. at 43 (citing People v. Krivda, 486 P.2d 1262 (Cal. 1971)); United States v. Dunn, 480 U.S. 294, 297–98, 303 (1987).
57. Guido Calabresi, A Common Law for the Age of Statutes (1982), 91–119.
58. Roberts and Casanova, Automated License Plate Recognition Systems: Policy and Operational Guidance for Law Enforcement, supra note 52, at 28 & 45nn66–67 (citing Me. Rev. Stat. Ann. tit. 29-A, §2117-A[5] (2009); Paula T. Dow, N.J. Att’y Gen., Attorney General Guidelines for the Use of Automated License Plate Readers [ALPRs] and Stored ALPR Data (2010) (effective Jan. 18, 2011)); Jeffery Rosen, The Naked Crowd: Reclaiming Security and Freedom in an Anxious Age (2005), 57–59 (discussing the Washington Metropolitan Police Department’s proposed regulations); Joint Hearing on Video Technology in Police Surveillance and Traffic Control Before the Council of the District of Columbia Comm. on the Judiciary and Comm. on Public Works and the Env’t (2002) (statement of Margret Kellems, Deputy Mayor for Public Safety & Justice), www.dcwatch.com/issues/privacy10.htm (“[W]e have prepared draft regulations for the operation of CCTV by MPD in the District for which we will be seeking public comment and Council approval.”).
59. City of Ontario v. Quon, 560 U.S. 746, 759–60 (2010) (ruling on narrow grounds in part because “the Court would have difficulty predicting … the degree to which society will be prepared to recognize [employee’s privacy] expectations as reasonable” in light of “[r]apid changes in the dynamics of communication and information transmission”).