This is the final post of a four-part series from Cybercrime Review on the Ninth Circuit's Ahrndt decision and the important legal issues concerning wireless networks.
The most interesting portion of the 9th Circuit’s Ahrndt decision may be this line: “[t]he court should also evaluate whether a search occurred in light of Jones, 132 S. Ct. 945, decided after the district court’s original ruling.” Notably, this is the second to last line in the decision but is the most intriguing and ripe for analysis. First, it raises the question of whether that line was thrown in as an afterthought, to acknowledge Jones as possibly pertinent, but ultimately punting the issue back to the district court to delay addressing Jones at this juncture. (The probable answer to this question is “yes”). Second, and more importantly, it is unclear whether this line is subsumed in the court’s discussion of a person’s reasonable expectation of privacy (which is directly above it and pervades the text) or is an independent statement made as part of the overall decision’s conclusion. I will elaborate on the former possibility first, and then address the latter possibility second.
If the Ahrndt decision’s reference to Jones implicates a person’s reasonable expectation of privacy, then the court cannot be referring to Justice Scalia’s majority opinion in Jones, which is not rooted in the Katz line of cases, but in 18th century trespass. This is fascinating because it would be explicit recognition by a federal circuit of Justice Alito and Sotomayor’s concurring opinions (which resolve Jones within Katz) as having precedential force. Let me restate the implication just to be clear: a federal circuit is asking, on remand, that a district court analyze a factual situation involving no obvious (or typical) physical trespass, in light of Jones – a case which held a search occurred because of a physical trespass concomitant with the intention of obtaining information. Simply put, Justice Sotomayor’s words are crystalline here:
Nonetheless, as Justice Alito notes, physical intrusion is now unnecessary to many forms of surveillance. . . . In cases of electronic or other novel modes of surveillance that do not depend upon a physical invasion on property, the majority opinion's trespassory test may provide little guidance. But ‘[s]ituations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.’ . . . As Justice Alito incisively observes, the same technological advances that have made possible nontrespassory surveillance techniques will also affect the Katz test by shaping the evolution of societal privacy expectations.
While Scalia did not shoot down Katz, but merely supplemented Fourth Amendment jurisprudence with yet another test, it should be noted that Jones is already causing confusion in the lower courts.
Should the Ninth Circuit's reference to Jones implicate trespass, as portrayed by Justice Scalia in Jones, it would be a sea change in jurisprudence in this area. The key underpinnings of essentially all reservations of privacy post-Katz (involving non-trespassory/property invasions) have been examined through a different looking glass – the reasonable expectation of privacy. For example, Amy Peikoff stated “[Justice] Stewart, like Brandeis and Douglas before him, want[ed] to disengage the notion of a Fourth Amendment ‘search’ from any remnant of the trespass doctrine. He, too, want[ed] to keep as many options open as possible, with respect to what does or does not constitute a search.” If the Ninth Circuit is invoking Jones to examine the current situation, based on property notions, we are either taking a step back, or taking a step far to the side. See my earlier post on WiFi as physical trespass as evidence of this side-step.