Chief Judge David Sentelle will participate in a panel entitled “Privacy vs. Free Speech in the Age of Mass Media, 21st Century Communications and Social Media,” this Saturday, October 29, from 2:00-4:00pm at the Washington Post Conference Center, 1150 15th ST., NW, Washington, D.C.
The topic is a timely one for Chief Judge Sentelle, who dissented when the D.C. Circuit denied rehearing en banc in the GPS case that the Supreme Court will be hearing on November 8. United States v. Jones, No. 10-1259 (S. Ct.) [United States v. Maynard, No. 08-3030 (D.C. Cir. Aug. 6, 2010) (Ginsburg, J., joined by Tatel & Griffith, JJ.), reh’g en banc denied, United States v. Jones, No. 08-3034 (D.C. Cir. Nov. 19, 2010)].
The panel held that the government’s warrantless use of a GPS device to track the defendant’s car was an unreasonable search in violation of the Fourth Amendment, because the totality of the information collected by the device violated a reasonable expectation of privacy. Chief Judge Sentelle and three of his colleagues disagreed with the panel’s “mosaic theory.” Jones, No. 08-3034 (Sentelle, C.J., joined by Henderson, Brown & Kavanaugh, JJ.) (dissenting from the denial of rehearing en banc). Chief Judge Sentelle opined that the case was controlled by the Supreme Court’s 1983 opinion in United States v. Knotts, which upheld the use of a radio transmitter that helped police to follow the vehicle but did not collect any data. Under Knotts, wrote Chief Judge Sentelle, “the reasonable expectation of privacy as to a person’s movements on the highway is . . . zero,” so “[t]here is no material difference between tracking the movements of the Knotts defendant with a beeper and tracking the Jones appellant with a GPS.”