Party Like It’s 1984

November 8th, 2011

During oral arguments in Jones v. United States, there were quite a few references to Orwell’s 1984 (no V for Vendetta Guy Fawkes masks came out during arguments, though):

Justice Breyer: So if you win, you suddenly produce what sounds like 1984 from their brief. I understand they have an interest in perhaps dramatizing that, but — but maybe overly. But it still sounds like it.

MR. DREEBEN: I think — all right. Justice Breyer, two things on that. First of all, I think the line-drawing problems that the Court would create for itself would be intolerable, and better that the Court should address the so-called 1984 scenarios if they come to pass rather than using this case as a vehicle for doing so.

MR. DREEBEN: As in most reasonable suspicion cases, it’s the police at the front end and it’s the courts at the back end if there are motions to suppress evidence. But fundamentally, just as in the pen register example and in the financial records example, if this Court concludes, consistent with its earlier cases, that this is not a search yet all Americans find it to be an omen of 1984, Congress would stand ready to provide appropriate protection.

Justice Breyer: They’re willing to go as far as reasonable suspicion in a pinch. And they say at least with that Alderson Reporting you will avoid the 1984 scenario and you will in fact allow the police to do their work with doing no more than subjecting the person to really good knowledge of where he is going on the open highway. They probably put it better than I did, but I’d appreciate your views on that.

JUSTICE KENNEDY: I’m fully aware of the 1984 ministry of love, ministry of — of peace problem. But this — your argument it seems to me has no principled distinction from the case that I put.

Mr. Dreeben: At the same time, technology and how it’s used can change our expectations of privacy in the ways that Justice Alito was alluding to. Today perhaps GPS can be portrayed as a 1984-type invasion, but as people use GPS in their lives and for other purposes, our expectations of privacy surrounding our location may also change.