Justice Sotomayor on her privacy opinion: “Remember, I was only one of nine.”

January 27

Justice Sotomayor’s concurring opinion in United States v. Jones, 132 S.Ct. 949 (2012), argued that it may be time to rethink Fourth Amendment caselaw to provide more privacy in new technologies. Sotomayor’s opinion has received an unusual amount of attention in the popular press and among privacy advocates. As MSNBC gushed recently,

More than just a legal opinion, Sotomayor penned a legal manifesto on privacy for a digital age debated among Fourth Amendment scholars and brandished by civil libertarians seeking to prevent the coming of a digital government panopticon.

Business Insider had a similarly dramatic take on the opinion:

If a constitutional challenge to NSA domestic spying ends up reaching America’s highest court, Sotomayor’s argument for the Fourth Amendment in the digital age is America’s best hope to reclaim America’s right to privacy.

Lynn Oberlander echoed the point at The New Yorker with a post on the concurrence that asked, “Can Justice Sonia Sotomayor Stop the N.S.A.?

With expectations for Justice Sotomayor’s concurring opinion running so high, it’s worth considering Sotomayor’s comments last Thursday as she presided over the final round of the George Washington University Law School annual moot court competition. You can watch the video of the moot court here.

Some background about the moot court problem may be helpful. The competition was drafted in significant part around Sotomayor’s concurrence. The problem involved three high-tech surveillance practices that current law mostly allows but that might not be allowed under Justice Sotomayor’s approach. (Full disclosure: I had a minor role in shaping the problem, and I judged a semi-final round of the competition.)

The first problem was government access to historical cell-site information, which the Fifth Circuit recently held does not trigger the Fourth Amendment under the third-party doctrine. The second problem was pinging a cell phone to determine its location, which the Sixth Circuit held was not protected under the Fourth Amendment at least in the case of locations outside the home. The third problem was drone surveillance, which is presumably addressed by current law under the permissive Supreme Court decisions allowing aerial surveillance.

In each case, there was a time element. The government collected historical cell site records covering a two month period; investigators pinged the cell phone almost a thousand times over two weeks; and they used the drone every day for thirteen days. Each of the surveillance methods yielded some evidence, and the government never obtained a warrant.

The petitioners in the case, representing criminal defendants who were monitored, have to argue that use of each of the three surveillance tools was a Fourth Amendment “search” that violated the defendants’ reasonable expectation of privacy. The respondents, representing the United States, have to argue that none of them were searches and that they did not violate a reasonable expectation of privacy. At the argument, he petitioners largely relied on arguments from Justice Sotomayor’s concurrence; the respondents largely relied on the Supreme Court’s existing cases on the third-party doctrine and aerial surveillance. Justice Sotomayor presided over the moot court final, joined by Judge Robert Katzmann of the Second Circuit and Judge Lee Rosenthal of the Southern District of Texas.

Law school moot courts are peculiar rituals, so it’s hard to make much out of the arguments themselves. In particular, you can’t tell if a judge is expressing a view because she believes it or because she wants to test if a student can spot the flawed premise. But Justice Sotomayor did offer some interesting comments after the arguments when she commented on the performance of the advocates.

The key moment begins at 1:16:24, when Justice Sotomayor addressed the petitioners representing the defendants:

Petitioners, you had the hardest of arguments. And very little caselaw in your favor (laughs). I said at my lunch to the Dean, and the two lovely professors I was with, that my concurrence in Jones — remember, I was only one of nine. So it’s not really law that can help you. But you did a wonderful job with a tough legal position.

That’s a much less optimistic portrayal of Justice Sotomayor’s position than I was expecting.

Justice Sotomayor next commends the respondents for their presentation of existing law, and she then gets to the comparison between them:

It was very hard for us to pick the winners. Harder legal issue; more precedent; and each of you skilled, there was only a slight edge in the winner. And if the edge was in anything, it was in the consistency of theory that the respondents had in their presentation. And that may have been a flaw inherent in the side [the petitioners] picked. I’m very very proud of the fact that you took the harder side. That showed a lot of courage, and a lot of gumption.

As I said earlier, law school moot courts are peculiar rituals, and some of this may just be an effort to be nice. Framing the issues that way may just reflect an effort to let the losing side off easy by saying it’s not their fault. But still, I was struck by how Justice Sotomayor suggested that the arguments her Jones opinion faced such an uphill battle. It’s a pretty different picture than you find in the popular press coverage of Jones.

Orin Kerr is the Fred C. Stevenson Research Professor at The George Washington University Law School, where he has taught since 2001. He teaches and writes in the area of criminal procedure and computer crime law.
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