Meet Justice Samuel Alito Jr.: Cyberpunk in robes?

Alito’s concurring opinion in the U.S. Supreme Court’s recent decision involving the Fourth Amendment and GPS surveillance triggered as many conflicting reviews among scholars, court watchers and others as the justices’ decision itself.

In U.S. v. Jones, a majority of the Court on Jan. 23 held that a Fourth Amendment search occurs when the government physically intrudes on a constitutionally protected area in order to get information.

Justice Antonin Scalia, writing for five members of the Court, stressed that both the physical intrusion or trespass (here, the attachment of the GPS to a car’s underbelly) and the obtaining of some thing (here, information) are necessary.

Alito, writing for four justices, concurred in the judgment that a search had occurred, but reached that end by taking a different path. He rejected Scalia’s 18th century trespass approach and instead applied the more than four-decade-old “reasonable expectation of privacy” test announced in Katz v. U.S. Reluctant to announce a bright line for when privacy rights are impinged, Alito said it was clear that the Fourth Amendment’s line had been crossed before the 28-day surveillance period in Jones had ended.

The blogosphere immediately was abuzz with differing interpretations: The decision means a warrant is required for GPS surveillance, insisted some. No, the decision says nothing about warrants, countered others. Alito’s opinion is more protective of privacy than Scalia’s, claimed some. No, Scalia’s decision is, said others, because he explicitly retains the reasonable-expectation-of-privacy test as a backup.

But just about everyone could agree that Alito was the surprise performer.

“I didn’t see it coming,” said information-privacy and criminal procedure scholar Paul Ohm of the University of Colorado School of Law. “Maybe Alito is a cyberpunk in robes we didn’t appreciate before this.” (For the record, a cyberpunk is generally thought to express ideas about human nature, technology and their combination in the near future.)

SURPRISE TURN

Alito, Ohm said, generally has been considered a pro-government, law-and-order judge and justice. “I don’t remember him ever so distinctively breaking from the other justices whom I perceive as law and order in such a pro-defendant, pro-privacy way,” he said. “I was pretty startled by that.”

Adding to the surprise of everyone was a rare alignment among the justices. Joining Alito were Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan. And, in a separate concurrence, Justice Sonia Sotomayor embraced much of what Alito wrote in perhaps the strongest pro-privacy opinion of the three written in Jones.

So what’s going on in that sharply analytical mind behind the rather nerdy exterior?

Alito has garnered a reputation among some as pro-privacy primarily because of his opinions in two First Amendment cases: Snyder v. Phelps and Doe v. Reed. In the latter case, he concurred in the 8-1 decision rejecting a facial challenge to a state law that allowed public disclosure of the identity of persons who sign ballot petitions — in this case, an anti-gay-marriage petition.

In his Doe concurrence, Alito said the challengers, if they could show credible evidence of harassment or fear of harassment and violence, had a strong argument that the law, as applied, violated the First Amendment.

“Were we to accept respondents’ asserted informational interest, the state would be free to require petition signers to disclose all kinds of demographic information, including the signer’s race, religion, political affiliation, sexual orientation, ethnic background, and interest-group memberships,” he wrote.

Alito was the lone dissenter in the Snyder case, in which the Court held that the First Amendment protected the right of the Westboro Baptist Church to protest at a military funeral. He countered, “Allowing family members to have a few hours of peace without harassment does not undermine public debate. I would therefore hold that, in this setting, the First Amendment permits a private figure to recover for the intentional infliction of emotional distress caused by speech on a matter of private concern.”

And those who see Alito as a privacy cop also point to his opinion for a unanimous Court in NASA v. Nelson as less direct evidence. Alito, in upholding NASA background checks of contract employees, assumed, without deciding, the existence of a right to informational privacy and drew sharp criticism from justices Scalia and Clarence Thomas.

The same concerns about privacy in his GPS opinion animated his opinion in Doe v. Reed, said Walter Dellinger of O’Melveny & Myers. “For Justice Alito, merely tracking the movement of a vehicle from one place to another might not constitute a search requiring a warrant, but anything that would reveal religious affiliation or political orientation would cause him concern,” he suggested. “The idea you could track members of a church to see where else they were gathering to meet for political purposes is the kind of power he would not want the government to have.”

21ST CENTURY PROBLEMS

Alito’s opinion in the GPS case is less about being pro-privacy and more about the 21st century, suggested criminal procedure scholar Daniel Richman of Columbia Law School. “Here you have somebody with an extensive knowledge of criminal law enforcement who appreciates, I think, the really tough issues being presented by emerging technologies,” Richman said. “I think it was refreshing to see a real effort on his part to focus on what really are the hard questions the Court faces to some extent in this case and to a much greater extent in future cases where everyone carries a GPS in their pocket voluntarily.”

Indeed, in defending the Katz expectation-of-privacy test, Alito conceded it has flaws. The Katz test, he wrote, “rests on the assumption that this hypothetical reasonable person has a well-developed and stable set of privacy expectations. But technology can change those expectations. New technology may provide increased convenience or security at the expense of privacy, and many people may find the tradeoff worthwhile.”

There are no easy answers to the technology-privacy issues, Richman said. “Many of us applaud this recognition of the need for judicial intervention as these technologies get brought into play.”

Colorado’s Ohm agreed, calling the three opinions in Jones the “optimal result” from a Fourth Amendment privacy standpoint. Alito’s opinion, he added, may change the strategy that some groups take in writing amicus briefs in Supreme Court cases.

“In the context of small groups trying to influence the Court, you can’t help engage in head counting,” he said. “Having done that myself in two or three criminal cases in the last few terms, I don’t remember him as anyone you were trying to get. I can’t imagine after Jones not trying to appeal to him. You need to target Justice Alito, not as a safe vote, but one who would have sympathy for a pro-privacy view.”

Ohm also noted that the week before the Jones decision, Alito had joined a dissent by Breyer in Golan v. Holder. In that case, the Court held that congressional action restoring copyright protection to works previously in the public domain did not violate the First Amendment or the copyright clause.

“It’s not surprising Breyer dissented, but I couldn’t help but compare Alito’s role in both,” Ohm said. “It makes me wonder if it’s not just privacy and criminal law but maybe technology and cyberspace that really does trigger something in Justice Alito.”

In last term’s violent video game case, EMA v. Brown, Alito showed an acute and detailed awareness of where that particular realistic technology was headed. Although he concurred in the judgment that California’s law barring the rental and sale of those games to minors violated the First Amendment, he advocated a narrower approach.

“In considering the application of unchanging constitutional principles to new and rapidly evolving technology, this Court should proceed with caution,” he wrote. “We should take into account the possibility that developing technology may have important societal implications that will become apparent only with time.”

And, as he wrote in his GPS opinion, legislatures may be in the better position to assess the implications of new technology.

Although many in the criminal procedure and cyberspace arenas applauded the Jones decision, some continue to have reservations about Alito in the next case raising similar questions.

“The way he describes Katz makes it sound as though as we increasingly move towards everybody being surveilled, we won’t have Fourth Amendment expectations of privacy,” said Margot Kaminski, executive director of Yale Law School’s Information Society Project. “But you can have the knowledge you are being surveilled and still reasonably expect that people won’t surveil you. If you walk around with a cellphone, that doesn’t mean you have no reasonable expectation of privacy.”

The “exciting thing about Jones,” she added, is that the ruling was 9-0.

In the end, as between Scalia and Alito, “it is not at all clear” whose opinion is more protective of privacy, said Orin Kerr of George Washington University Law School, whose work in this area was cited in the Scalia opinion.

“What’s interesting is not just Alito’s pro-privacy approach, it’s his unwillingness to embrace [Scalia's] originalist approach,” he said, adding, “I think it’s way too early to know how any of this will play out.”

Marcia Coyle can be contacted at mcoyle@alm.com.