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Scalia, Solove and the third-party doctrine

Daniel Solove’s work forms the basis of our recent analyses of big data privacy. It is impressive that he pulls together a comprehensive analysis of the implications of the passing of Justice Scalia for the third-party doctrine within a day.

Justice Scalia’s opinion in Jones actually provides very little protection against government location tracking. Only the physical affixing of a GPS device to a car violates the 4th Amendment according to his view. But under the third party doctrine, the government can readily obtain GPS data from third parties that provide GPS services without a physical trespass to the car. People’s location can also be tracked from their phones. Scalia’s view misses a key fact: It’s not the device that matters; it’s the data!

Well worth a read.

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