WHO’S WHERE?: Looking For A Uniform Rule In Granting Law Enforcement Authorizations For Smartphone Geolocation Data

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WHO’S WHERE?: Looking For A Uniform Rule In Granting Law Enforcement Authorizations For Smartphone Geolocation Data

Disclaimer: This article was composed in 2014 and may not reflect the current state of the law.

INTRODUCING THE PROBLEM: GPS LAW IS ALL OVER THE MAP

“Geolocation[1] has moved from the unfamiliar to the commonplace.”[2] It is estimated that between one third and one half of American adults have a smartphone[3] and a Global Positioning System (“GPS”) is considered standard equipment in these devices. For even the simplest cell phones, geolocation is still possible.[4] The ability of a personal device being able to self-geolocate has enhanced many aspects of their owners’ lives; affecting how they find places,[5] where they shop and eat,[6] how they look for romance,[7] and this appears to be only the beginning.[8] Similarly, no doubt because of the efficiency it offers, law enforcement has embraced using geolocation technology for surveillance or arrests on a staggering scale.[9]

But this new innovation seems to also engender questions about the proper use and control of these devices including, importantly, how constitutional liberties may be affected.[10] Privacy advocates have already expressed concerns about whether sharing location information provides a path to unprecedented private[11] and public dangers.[12] Many of their concerns arise when this kind of information is used in a law enforcement context, testing basic Fourth Amendment tenets.

One of the most controversial and unsettled areas of law arises when a government agency asks a service provider to prospectively “ping” a user’s phone, thereby obtaining their location.[13] Such requests are often made for a certain period of time which creates a record of the subject of an investigation’s movements.[14] Prospective requests (requests for location information in the future or as part of an ongoing investigation) are especially troublesome because they do not involve a request for a company’s normally generated records.[15] Rather, they ask that the user’s phone be used to track and locate the subject of the investigation or arrest warrant.[16]

Procedurally, two questions that arise are whether a request for geolocation should require a warrant, and if so, should the user’s phone be held to the same standard as a tracking device (i.e. requiring a showing if probable cause). Fundamental to answering those questions is the currently unresolved issue of whether a person has a constitutionally protected right to privacy in his location and movements. In the absence of definitively controlling case law or legislation, courts are deeply divided on this subject and inconsistent rulings are likely to continue. An illustrative example of this judicial inconsistency can be found in two magistrate level opinions that were issued within the space of two years and that flatly contradict each other.

This paper provides begins its examination of the legal issues associated with GPS phone pinging by providing a brief overview of Fourth Amendment jurisprudence with respect to electronic surveillance in Part II (A)(1). Part II (A)(2) looks at two key issues in GPS surveillance cases – does a user have a Fourth Amendment protected right of privacy to their location and movements, and is a GPS equipped phone a “tracking device” – by using the arguments laid out by In re Smartphone Geolocation Data Application[17] (“In re Smartphone”) and  In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel.,[18](“In re Application”) as models of the opposing sides. Part II (A)(3) argues that a cell phone user generally does have a reasonable expectation to privacy in their location and movements by analyzing weaknesses in the rationales that have been offered to not recognize the right. Having argued that a privacy interest might exist, Part II (B) moves beyond the Fourth Amendment question to argue that the government’s use of a target’s phone to locate the user makes the phone a “tracking device” thereby triggering a requirement that authorities make a showing of probable cause for a warrant to be issued. Part III briefly surveys the legislative remedies that might remediate the current confusion by both looking at pending legislation in Part III (A) and the current academic thinking in Part III (B).

 

WHERE ARE WE? THE CONSTITUTIONAL AND STATUTORY ISSUES

A striking illustration of how courts maintain completely divergent views on the role of the judiciary in prospective pinging requests is available by looking at two recent cases from different districts but relatively similar circumstances. In August of 2011, citing the need for guidance on issues that were both “largely unexplored” but which “will certainly arise again, most likely in urgent situations that do not allow an opportunity for deliberate consideration,”[19] a United States Magistrate Judge for the District of Maryland[20] issued a 60 page opinion[21] that provides a comprehensive examination of many of the issues presented by prospective geolocation. In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless, is the product of not only of the facts the case presented but briefings by the Office of the United States Attorney, the U.S. Department of Justice, and the Office of the Federal Public Defender.[22] It provides a detailed look at the technology itself, an examination of the Fourth Amendment implications, including whether one has a reasonable expectation of privacy in their movements or location.[23] It also provides an analysis based on the Federal Rules of Criminal Procedure,[24] a court’s “inherent authority”[25] to issue warrants, as well as an examination of any legislative options offered under the Stored Communications Act (“SCA”),[26] “Communications Assistance for Law Enforcement Act” (“CALEA”),[27]and, most significantly, the Electronic Communications Privacy Act (“ECPA”) Based on this detailed analysis, In re Application found that, absent a probable cause showing that the suspect is a fugitive or other evidence of an ongoing crime, a suspect “has a reasonable expectation of privacy both in his location as revealed by real-time location data and in his movement where his location is subject to continuous tracking over an extended period of time.…”[28] Additionally, that a GPS enabled phone was a tracking device under ECPA. Less than two years later, a Magistrate Judge for the Eastern District of New York[29] held in In re Smartphone Geolocation Data Application,[30] exactly the opposite.[31]

Both opinions examine many of the same sources of law but come out diametrically opposed on the applicability of the Fourth Amendment, or any of its legislative or jurisprudential progeny, with respect to geolocation. They look to the seminal cases in electronic surveillance and expectation of privacy matters Katz,[32] and Knotts[33] (though notably In re Smartphone does not mention two important cases, Kyllo,[34] and Karo[35] ). They also consider more recent GPS and location cases including Skinner,[36] and Jones.[37] The same statutes are examined but opposing views emerge. Arguably, the inconsistent result is the product of a lack of movement in updating legislation to reflect new technological developments – something certain scholars have argued for as an imperative need.[38] But in the absence of a clear law, a clear ruling by the Supreme Court on the interpretation of the existing law appears to be imperatively needed to avoid confusion.[39] While In re Smartphone and In re Application are magistrate level decisions, other geolocation decisions have risen to the courts of appeals, [40] qualifying them for Supreme Court review.[41] At minimum, a decision would allow enforcement agencies seeking geolocation data to know when they are acting constitutionally; or at least within a good faith understanding of what is required by the existing law. [42]

This section will examine two key legal issues associated with prospective requests for geolocation by law enforcement: first, whether a reasonable expectation of privacy exists with respect to location and second, whether a GPS enabled device falls within the statutory definition of a tracking device. Using the conflict between In re Application and In re Smartphone as a framework, this section will augment the examination with additional case law where appropriate. In order to make the discussion more meaningful, a brief background on Fourth Amendment caselaw as it applies to electronic surveillance is provided.

THE FOURTH AMENDMENT AND A REASONABLE EXPECTATION OF PRIVACY IN LOCATION

  1. Fourth Amendment surveillance basics: the four K’s, Skinner and Jones

While opinions differ on whether or not it applies, most legal thinkers including the presiding judges in In re Smartphone and In re Application have examined geolocation through the prism of the Fourth Amendment.[43] Therefore, a basic understanding of Fourth Amendment jurisprudence is needed to analyze the issues. At least as far back as the early 17th century, the English common law recognized that government only has a limited right to invade a space where an owner might have a possessory or privacy interest. [44]  Pre-Revolutionary concerns[45] regarding invasive searches led to passage of the Fourth Amendment as part of the Bill of Rights.[46] The Amendment creates a constitutional guarantee to an individual’s fundament right “to be secure against unreasonable searches and seizures by the government.”[47]

Although the baseline for an unreasonable search remains whether there has been a trespass,[48] the Supreme Court broadened protections substantially in the 1960’s with Katz v. United States.[49] Presented with a case where FBI agents recorded the conversation of a Los Angeles bookie who entered a public telephone booth and closed the door behind him, the Court found that the accused had a constitutional right to be free from government monitoring even in a public place unless a warrant was obtained. The Court explained that the Fourth Amendment “protect[s] people—and not simply ‘areas’”[50] Justice Harlan famously affirmed in his concurrence that “a person has a constitutionally protected reasonable expectation of privacy”[51] and that privacy concerns were implicated in both “electronic as well as physical intrusion[s].”[52]

Simply stated, Katz says that a person has a reasonable expectation of privacy where they “have exhibited an actual (subjective) expectation of privacy and … that the expectation [is] one that society is prepared to recognize as ‘reasonable.’”[53] This formulation is significant because it provides a well-recognized albeit imperfect method for establishing whether an expectation of privacy is constitutionally protected. The fact that Katz involved electronic monitoring with no physical trespass seems to make it especially applicable to cases involving electronic signals like those emitted from cellphones when registering with cell towers or received by GPS chips.[54]

Subsequent cases refined Katz with respect to its application where the subject of the search may be moving or where new technology is employed.  In United States v. Knotts,[55] the Court held that “A person travelling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another [because] he voluntarily convey[s] to anyone who wanted to look the fact that he was travelling over particular roads in a particular direction.”[56] In a case involving thermal sensors used to detect the contents of a home from the exterior of the structure, Kyllo v. United States[57] found that “obtaining by sense-enhancing technology any information regarding the interior of the home that could not otherwise have been obtained without physical intrusion into a constitutionally protected area constitutes a search—at least where … the technology in question is not in general public use.”[58] The use of an electronic device (“a beeper”) which revealed information about the contents of a home, including whether it contained a particular item or person, was similarly found to be an unlawful search in United States v. Karo[59] because authorities failed to obtain a warrant by showing probable cause or reasonable suspicion.

Recently at the appellate level, the tendency has been to look to the past rather than embrace the future, leaving key questions unresolved. [60] For instance, despite criticism that it was looking to 18th century tort law to solve a 21st century problem,[61] the Supreme Court preferred in United States v. Jones to concentrate on the fact that the GPS device had been physically placed on a vehicle. The Court found a Fourth Amendment violation based on the trespassory act (the placing of the device on the accused’s property) rather than examine any violation of an expectation of privacy that occurred based on monitoring the vehicle’s movements.[62] The Court reasoned that Katz was an addition to the common law trespassory test but never fully explained why the modern test was less applicable than the historical one.[63] Even more recently, the Sixth Circuit concluded – comparing the signals emanating from a cell phone to the scent given off by a fugitive chased by dogs – that any expectation of privacy would be unreasonable where police used cell signals, emanating from a pay-as-you-go cell phone on a public highway, to locate a defendant. [64]

Scholars have expressed their disappointment that the Supreme Court did not use Jones to provide more meaningful guidance in this area[65] but most judges have tended to default to the Katz inspired jurisprudence in resolving geolocation issues. [66]  Arguably, because Katz leaves so many questions regarding location privacy unanswered, lower courts are left to wrestle with a very significant aspect of Fourth Amendment jurisprudence without clearly indicated guidelines. The result is the inconsistent body of case law evidenced by In re Smartphone and In re Application.

  1. Does a cell or smartphone user have a reasonable expectation of privacy in his movements and location?

In examining the Fourth Amendment question, In re Application saw two distinct privacy interests that required consideration: an individual’s right to privacy in his location and a similar right in his movements.[67] The right to privacy in one’s location is based on the distinction that the Supreme Court has made between places where one can be publicly viewed (thereby voluntarily disclosing themselves under Knotts) and places where “traditional investigatory techniques” would not allow surveillance (i.e. constitutionally protected areas).[68] Tension arises from the fact that, where traditional methods of surveillance allow law enforcement to recognize when a target is in a constitutionally protected area and identify when a privacy expectation might arise, location data does not discriminate with respect where the target might be found.[69] Therefore In re Application argues, a GPS ping is likely to yield the same impermissible information that both Kyllo and Karo prohibit, namely information about the “interior of the premises that the Government is extremely interested in knowing [including a person’s location] and that it could not have otherwise obtained without a warrant.”[70]

Right to privacy in movements considers location data in the aggregate. In re Application reminds us that while Knotts negated an expectation of privacy on public thoroughfares, “it expressly reserved 24 hour surveillance”[71] and several courts have noted the invasive nature of the inferences that can be drawn from tracking a subject’s movements.[72] The concerns In re Smartphone  articulates seem to echo those expressed by both Justice Sotomayor in Jones[73] and Chief Judge Jonathan Lippman of the New York Court of Appeals:

“Disclosed in the [GPS] data … will be trips[,] the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity is a highly detailed profile, not simply of where we go, but by easy inference, of our associations—political, religious, amicable and amorous, to name only a few—and of the pattern of our professional and avocational pursuits.”[74]

Judges, legal scholars and civil liberties groups have been especially vociferous about how extended warrantless surveillance of a person’s location could “alter the relationship between citizen and government in a way that is inimical to democratic society,”[75] rendering current Fourth Amendment jurisprudence irrelevant,[76] and that a conclusion that a “person has no reasonable expectation of privacy in his movements … would divest Americans of privacy they … continue to desire.”[77] Predictably, most solutions that are proposed are either in the form of greater clarity in the rules via legislative action or some definitive ruling by the Supreme Court.

In contrast, In re Smartphone does not expressly make the distinction between location and movements but does address the same expectation of privacy question by framing it in terms of voluntary disclosure. In fact, the court found that “the voluntary disclosure doctrine provides the most important departure point in evaluating requests for prospective data.”[78] The logical path of the doctrine in this context is: there can be no expectation of privacy for information disclosed to a third party;[79] smartphone users know that information is conveyed by the devices to carriers when they are turned on,[80] therefore leaving the device turned on is an act of voluntary disclosure rather than an exhibition of a reasonable expectation of privacy.[81] To counter the claim that the disclosure wasn’t voluntary because the user had no knowledge that the technology would reveal their location or that consent was never obtained the court points to how the press has widely covered the subject.[82] They note how certain famous or infamous apps have “capture[d] the public attention.”[83] And lastly, the court cites to business practices that require end users to expressly agree to terms putting them on notice that “their cell phones may be tracked and that this information may be provided to [the] authorities.”[84]

In some respects logic of In re Smartphone resembles that of a more recent case that was thought to be a candidate for Supreme Court review,[85] United States v. Skinner.[86] Comparing the signals emanating from a cell phone to the particular colors in a getaway car’s paint, Skinner concluded that any expectation of privacy would be unreasonable where police used cell signals emanating from a pay-as-you-go cell phone on a public highway.[87] In other words, the signals were disclosed to the public, defeating any assertion of a privacy expectation[88] even where “[a]uthorities did not know the identity of their suspect, the specific make and model of the vehicle he would be driving, or the particular route by which he would be traveling.”[89] An underlying rationale of the decision is that cell and smartphones are inherently “locatable” by others. Therefore any claim of a reasonable expectation of privacy is defeated – even by an innocent actor – where a locatable phone is present and on.[90] Perhaps indicating a more philosophical rationale, Skinner holds that “[w]hen criminals use modern technological devices to carry out criminal acts[,] … they can hardly complain when the police take advantage of the inherent characteristics of those very devices to catch them.”[91]

A third court however, modified the voluntary disclosure doctrine by cabining it to instances where there is an “emergency” present. [92] United States v. Caraballo[93] posits that all cell and smartphone owners are on notice that they may be pinged in an emergency.[94] As a result, there can be no actual subjective expectation of privacy in geolocation where a suspect finds himself in a situation where an emergency is deemed to exist.[95] A well-established exception to the requirement of obtaining a warrant for a search is where “the needs of law enforcement [are] so compelling that a warrantless search is objectively reasonable, including law enforcement’s need to provide emergency assistance to an occupant of a home [or] engage in hot pursuit of a fleeing suspect….”[96] Though not identifying it as a mitigating factor, In re Smartphone similarly cites to “exigency” being present when the authorization was granted in that case.[97] So, the logic of these courts seems to create at least one rationale (the emergency doctrine) where geolocation concerns should be subsumed to a well-established area of Fourth Amendment case law if the circumstances permit,[98] even though Caraballo invokes voluntary disclosure.

  1. Based on the inadequacy of the arguments to the contrary, users should have a presumptive right to privacy in their location and movements

Looking the cases collectively, a potential defendant hoping to contest an unwarranted ping of his phone could find himself before two judicial constitutional philosophies. One judge might hold that the geolocation data is inadmissible without a warrant; either because pinging is unable to anticipate whether or not the subject is in a constitutionally protected area or because geolocation invades privacy by allowing for inferences, discernable from a person’s movements, regarding aspects of people’s lives that they may wish to keep private. Another judge could hold that the data requires no warrant because cellphones voluntarily disclose location data, either in limited or all circumstances. In both cases, the courts would most likely apply Katz but come to these very different results.

Facially, voluntary disclosure appears to be the more elegant of the two arguments, both for the simplicity of its solution (a person can simply turn off the phone if they wish to exhibit an expectation of privacy) and its basis in well-established case law.[99] But this is deceiving because analogizing people’s relationship to mobile device technology to historical circumstances is an imperfect art at best.

As a threshold matter, smartphones are extremely personal in nature because of the proximity in which we constantly keep them. This proximity is the result of a utility that is only manifest when they are turned on. A 2010 study found that 65 percent of adults with cell phones sleep with their cell phone on, or right next to, their bed.[100] The same study found that 9 out of 10 Americans feel safer with their cellphone.[101] It is absurd to assert that there would be this relationship with their device if it wasn’t capable of performing functions that it can only accomplish when turned on. Smartphones act not just as location devices or phones but among other things, they also act as alarm clocks, calendars, address books and news readers. In fact, the installed applications of a smartphone’s contents have been found sufficiently personal that the constitutionality of a search of them “incident to arrest” is currently being weighed by the Supreme Court.[102] Moreover, the proximity with which we hold these devices has led one court to remark that “cell-site data is simply a proxy for [the owner’s] visually observable location.”[103] If the Fourth Amendment protects people rather than areas as asserted in Katz, it is hard to imagine a device that users have such an intimate relationship with yet is capable of revealing so many intimate details of that person’s life. Katz and all of its progeny create a presumption that there are some aspects of a person’s life that they prefer to keep from public view. It similarly acknowledges areas outside the home that are constitutionally protected. Just because a person’s location is ascertainable because they keep a locatable device close by does not lead to the logical inference that they are knowingly disclosing their location.[104]

In re Smartphone’s voluntary disclosure arguments are based either on either consent or knowledge. Neither is completely convincing. The stronger of the two arguments might be where there is an explicit waiver or voluntary disclosure because Supreme Court cases have held that there is no reasonable expectation of privacy in information that is voluntarily turned over to a third party.[105] User agreements between mobile phone service providers and customers often “require users to expressly agree that the companies will track their geolocation data and that such data may be provided to [g]overnmental authorities upon the provision of a subpoena or court order.”[106] In re Smartphone interprets those agreements as a waiver to an expectation of privacy in location data.[107] The basic flaw in this argument is, just as many customers may do, the court fails to read the terms of the agreement in its entirety. The agreement cited by the court expressly adds the words “upon the provision of a subpoena or court order.” In re Smartphone argues that it follows that the customer has agreed to the disclosure in the absence of a court order. The fundamental question in location data is not, may it be had after a court has made a probable cause determination and authorized a search, but instead whether there is a privacy interest that requires a court’s attention before that search can be conducted.   Expressly, the inclusion of the words “upon the provision of a subpoena or court order” creates a presumption that some court authorization is required before any consented to waiver can be invoked.

In re Smartphone also argues that users voluntarily disclose their location by the mere fact that it is common knowledge that such governmental geolocation is possible. Geolocation, the court asserts, is no longer “newsworthy,” and is in fact a routine tool[108] commonly known to those who watch “police procedurals.” This observation is presumed to extinguish any claim to a privacy right.[109] The fundamental fallacy of this argument is the equivocation of knowledge with acceptance. To use a disproportionately extreme analogy, a person of color walking in a white neighborhood may know that he may be detained by police on an unconstitutional ground but his knowledge does not create a waiver of his rights. His skin color may be an inherent characteristic but the use of it as profiling tool for police remains constitutionally suspect.[110] Simply stated, knowledge of a possible violation does not create a waiver of a fundamental right. The same analogy points to the flawed reasoning in Skinner’s observations on there being no reasonable expectation of privacy where the person is in possession of an item that is locatable. An absurd result of this line of thinking could be that an Alzheimer’s patient who wears a GPS bracelet[111] would be surrendering any right to privacy from the government while they are wearing the device.

If it is In re Smartphone’s intention to imply that this knowledge of possible disclosure defeats the second prong of a Katz test (that the privacy expectation is one that society is prepared to recognize as reasonable), this seems to mistake indecision for refusal. In re Smartphone itself acknowledges that “there is some tension in the prevailing case law”[112] and that the “Second Circuit has not ruled directly on the question of whether a user has a reasonable expectation of privacy in geolocation data….”[113] The only “guidance” it can find in its own circuit to support its theory is, United States v. Pascual, in which cell site records obtained with a subpoena, but not a warrant, were admitted into evidence. On appeal, it was held not to be plain error to admit the records.[114] A finding of “plain error” requires a contravention of clearly established precedent. Pascual clearly states that “no governing precedent from this Court or the Supreme Court” has been articulated, only that “the general principles adopted by those courts pointed” away from exclusion. In sum, there does not seem to be a collective decision either way on whether society recognizes a right to privacy with respect to location.[115] While society wrestles with the issue, shouldn’t the presumption be that there are more individual rights for Americans than less?[116]

The holding in Caraballo – that voluntary disclosure doctrine includes the removal of any subjective expectation of privacy to geolocation data where there is a true emergency[117] – is interesting, if not a little confusing because it addresses an obstacle that is not there. The fact that the “[suspect] clearly had notice that disclosure of his cell phone’s location to law enforcement may occur in order to respond to an emergency”[118] does not address a right waived based on voluntary disclosure. This is simply because there is no right to privacy in the face of a true emergency, irrespective of any notice or expectation.[119] Moreover, a law enforcement claim that an exigent circumstance existed at the time of the emergency is readily testable based on a long line of jurisprudence[120] which would generally require a showing of probable cause. This test protects the potential defendant from many of the abuses feared by privacy advocates because the request for geolocation data would receive the same retroactive review a search of a house would. Arguably, Caraballo excuses the warrant requirement where there are exigent circumstances but even exigent circumstances can be subject to review.[121]

In summation, this section examined some of the reasons courts have offered for denying the existence of a GPS equipped phone user’s reasonable expectation of privacy in location or movements and found them, at minimum, contestable. Neither In re Smartphone, Skinner, nor Caraballo seems to conclusively defeat the possibility that a person might have a reasonable expectation of privacy as to their location or movements. As a result, the natural question is, assuming that there might be reasonable expectation, what evidentiary burden must be met for a warrant to issue? Because no statute expressly addresses the requirement, a primary point of inquiry has been whether a GPS enabled phone is a tracking device. This is examined in the next section.

 

IS A GPS ENABLED PHONE ALSO A “TRACKING DEVICE?” PROBABLY.

In the mid-seventies, courts began consideration of what Fourth Amendment protections should be afforded in cases where mobile tracking devices were employed.[122] By 1986, Congress had enacted a statutory base that established a warrant requirement for the placement of tracking devices.[123] In doing so, Congress provided a definition of a tracking device as “an electronic or mechanical device which permits the tracking of the movement of a person or object.”[124]Given this definition, it is easy to see why modern privacy advocates see no distinction between a locatable cellphone and the devices considered by Congress.[125] But when put to the judiciary this is one area in which In re Application and In re Smartphone clearly differed.

The distinction is not a matter of semantics because determining that a locatable cell phone falls within the definition provides the clearest path as to what evidentiary burden a court might require for the issuance of a warrant for a prospective ping. Although government requests have invoked many statutes, (including Federal Rule of Criminal Procedure rule 41, the Stored Communications Act and a “hybrid theory” which incorporates several statutes [126]), many courts return to the Electronic Communications Privacy Act (“EPCA”)[127] as the statute closest to the subject.

Since the ECPA’s passage, four broad categories of electronic surveillance have been established, each with its own evidentiary standard for court approval of the surveillance.[128] In re Application provides a capable summary:

(1) wiretaps,[129]upon…a “probable cause plus” showing; (2) tracking devices,[130] …upon a standard probable cause showing; (3) stored communications and subscriber records,[131] …upon a showing of specific and articulable facts showing that there are reasonable grounds to believe that the data sought is relevant and material to an ongoing criminal investigation; and (4) pen registers and trap and trace devices,[132] … upon the Government’s certification that the data sought is relevant to an ongoing criminal investigation.

Therefore, a request for surveillance involving smartphone, if it were considered a tracking device, would require a showing of probable cause.

Understanding the procedural stakes for law enforcement, courts have taken great pains to either bring GPS devices in under the definition or to differentiate the two.  Advocates for the tracking device designation see this as an “elegant solution to the conundrum of Congress’ chosen definitions”[133] and only ask that the agency seeking the data to apply for a warrant.[134] In opposition, In re Smartphone argues that to apply the tracking device designation ignores the language of the entire statute and gives insufficient descriptive weight to language empowering a court “to issue a warrant … for the installation of a tracking device.”[135] In other words, this reading sees a tracking device as something that requires installation rather than an object that is already in the possession of the target. The court bolsters this argument by claiming that “the phrase ‘tracking device’ had a plain meaning both prior to and extrinsic to the enactment of the ECPA, insisting that that the phrase must be viewed against the state of technology as it then existed.”[136]

In re Smartphone distinguishes between “devices installed specifically to track someone or something, as opposed to cell phones which, incidental to their intended purpose, can be tracked or traced”[137] This distinction can be seen as a logical extension of the voluntary disclosure doctrine because if a device is surreptitiously placed on a subject’s property then the subject can not be said to be volunteering his whereabouts. Therefore, judicial review is desirable before installation. Because neither knowledge nor consent would be present in such a case, In re Smartphone would then presumably default to the trespassory test that Jones saw as guiding.

Assuming, as discussed above, that knowledge or consent are not present in every case, then Jones stands for the proposition that the violation of a trespassory interest would be guiding.

It is well established that a trespass takes many forms.[138] For example, “a trespass to chattels occurs when one party intentionally uses or intermeddles with personal property in rightful possession of another without authorization.”[139] Older common law doctrines can provide utility in the digital age.[140] Recently, the doctrine of trespass to chattels has found some footing in technological contexts.[141] Though generally reserved to civil contexts,[142]  trespass to chattels at its most basic requires only that an owner had possession of some piece of property at the time of the trespass and unauthorized interference with that property by another.[143] Requiring some judicial review prior to an unauthorized governmental interference with a possessory interest seems to both preserve the fundamental protections that the Fourth Amendment promises and reflect the “looser” but property based approach that some scholars believe still governs.[144] This is admittedly an unexpected approach to the application of trespass law. But innovative approaches to modern issues have not been completely alien to the modern Supreme Court.[145]

With respect to the Electronic Communications Privacy Act, In re Smartphone’s narrow reading (that a GPS enabled smartphone is not a tracking device) ignores the fact that often items not within Congress’ contemplation at the time of an act’s passage may, and often do, come under the act’s control.[146] In fact, it is not uncommon for the manifestation of a new advance in technology to be subsumed into a definition that was drafted prior to the item or technology’s arrival.[147] The legislative record as well seems to argue against a narrow reading of the statute, especially in light of one of the House sponsors of ECPA’s statements:

“The Electronic Communications Privacy Act updates existing Federal wiretapping law to take into account new forms of electronic communications such as electronic mail, cellular telephones, and data transmission by providing such communications with protection against improper interception. The bill also benefits law enforcement by creating clearer procedures for the use of investigative techniques which involve the interception of communications.”[148]

 

Similar language can be found on the Senate side. Senators Leahy and Mathias introduced the ECPA in the recognition that 1986 law was hopelessly out of date with technological advances.[149] The Senate report accompanying the act specifically mentions its intention to address “advances in surveillance devices and techniques” open to abuse by “overzealous law enforcement agencies….”[150]

Taken together, these statements seem to indicate Congress was more concerned with the modernity of its laws than an intention to limit judicial interpretations to the technology of 1986. Contrary to the reading In re Smartphone would give the statute, the evidence argues in favor of an inclusive reading of the definition of a tracking device. Congress’ intent, as it appears to be from the record, was to create laws that remain current in light of technological advances while still protecting privacy not bind them to a specific period of history.

Irrespective of which judicial interpretation of ECPA is the more accurate reading, greater legislative clarity is clearly desirable. Judges and justices have regularly called for a legislative solution to the uncertainty regarding warrant requirements in geolocation cases.[151] The next section will provide an overview of what some of those legislative solutions might resemble based on proposed legislation and modern academic thinking.

 

A NEW SET OF DIRECTIONS: PROPOSED LEGISLATIVE REMEDIES

The legal challenges created by GPS pinging are generally seen as part of a larger conversation concerned with maintaining privacy in an era of quickly developing technology. Legal thinkers are predictably varied in both their assessments of the severity of the problem and their proposals to address it. In looking at the severity, some writers argue that privacy violations are so widespread that legislative intervention is “imperative”[152] and that the Fourth Amendment is on the verge of irrelevance as currently interpreted by the courts. Most assert that there is the need for some form of shift in determining what is considered private and public behavior.[153] At the other edge of the spectrum remain a few that argue that the Fourth Amendment has not fallen behind technology” and that the concerns expressed by others are, at least for the moment, “hypothetical fantasy.”[154] But interest is not limited to academics or legal professionals. Large vested tech companies like Google, Facebook, and Twitter have entered the conversation, actively lobbying on privacy issues and spending as much as 5.5 million dollars[155] in a single quarter.

And while some legislators have cited pushback from law enforcement as an obstacle,[156] attempts at the national level and state level[157] have been made to update or introduce new legislation which would better address a person’s expectation of privacy with respect to their location. The legislative approaches have varied from modifying existing frameworks[158] to creating new ones.[159] Some legislators have embraced the convenience GPS tracking offers in aiding police work.[160] In the face of the call from some scholars for “super-statutes,”[161] most proposed legislation has looked to see what protections should be afforded society as a whole but a few bills have looked to protect just certain sectors like children.[162] At the time of this writing two bills, The Geolocation Privacy and Surveillance Act (“GPS Act”)[163] and the Location Privacy Protection Act[164] are under consideration by either one or both houses of Congress. Movement of any legislation regarding the use of GPS tracking by Congress has been slow to non-evident but these two bills arguably represent the latest legislative thinking on the subject.

  1. Two Current Bills

The GPS Act, according to GPS.gov,[165] “seeks to establish a legal framework that gives government agencies … clear guidelines for when and how geolocation information can be accessed and used[, by]…creat[ing] a process whereby government agencies can get a probable cause warrant to obtain geolocation information in the same way that they currently get warrants for wiretaps or other types of electronic surveillance.”[166] The bill would amend Title 18 of the United States Code to add an additional chapter[167] which would, according to the bill summary, prohibit “acquiring geolocation information of a person for … law enforcement or intelligence purposes except pursuant to a warrant.” Specifically, the prohibition would be against either intentionally or endeavoring to: intercept, use, or disclose geolocation data except in the case of certain exceptions. The exceptions include information acquired in the normal course of business (e.g. as part of providing GPS services) as well as an exception where the owner of the GPS enabled device has given prior consent. Parents would be able to offer this consent for their children. There is an exception for where the information is available publicly as well as cases of emergency or fraud or theft of the device.

More directly to government surveillance, a specific exception is made for cases where the Foreign Intelligence Surveillance Act (“FISA”) might be implicated. With respect to domestic law enforcement, the Act would allow “[a] governmental entity [to] intercept geolocation information or require the disclosure by a provider of covered services of geolocation information only pursuant to a warrant issued using the procedures described in the federal criminal rules, state warrant procedures (for state courts), or under the FISA rules.” If passed, the Act would also modify Rule 41(a)(2)(a)[168] of the Federal Rules of Criminal Procedure to include “geolocation information” in the types of property that a judge may issue a warrant to search or seize. Perhaps as a means of averting a legal “end-around” the Act, Section 5 declares that it, the FRCP or the FISA are the exclusive legal means to acquire geolocation data.[169]

The bill was co-authored by Representative Jason Chaffetz (R-Utah) and Senator Ron Wyden (D-Ore.) and has found considerable support among industry groups, civil liberties groups and digital privacy groups.[170] The bill has, as of this writing been referred to the House Judiciary Committee and the House Intelligence Committee but there has been little movement beyond that in over a year. Similarly, the Senate version of the bill[171] has been referred to the Senate Judiciary committee with little subsequent action. Neither bill has been deemed as having a high chance of passage in the current session of either house.[172] An expanded version of the House bill, which includes provisions for online communications, is also under consideration by the House Judiciary Committee but seems unlikely to resurface.[173]

A Senate bill that made it to the committee report stage and has been reintroduced in the current session[174] is Senator Al Franken’s Location Privacy Protection Act.[175] While primarily focused on preventing the collection and disclosure of geolocation between “nongovernmental individuals or entit[ies]” without the GPS enabled device user’s consent, it provides an exception if the collection or disclosure is by a law enforcement agency. A request by law enforcement, the bill states, “must be pursuant to any lawful authority or activity, … the Federal Rules of Criminal Procedure, or any other provision of Federal or State law, if the covered entity uses the geolocation information collected in response to the request solely for law enforcement purposes.” In light of the bill’s other provisions which deal with the use of geolocation in domestic violence and prohibitions against stalking apps, the fact that the bill makes no attempt to limit law enforcement by imposing a warrant requirement for the same data it prevents private parties from sharing might be understandable. The bill currently has no equivalent in the House and with less than 1% of Senate originated bills currently becoming laws,[176] it seems unlikely that Sen. Franken’s bill will be enacted.

Several members of Congress continue to call for the need for “clear and reasonable guidelines” with respect to geolocation tracking.[177] Public policy groups like the ACLU have created innovative initiatives to motivate voters to put pressure on lawmakers.[178] As mentioned above, considerable lobbying money is being spent by vested parties but little progress seems to have been made legislatively in clarifying whether a warrant is required for law enforcement to obtain geolocation data. Arguably, it will require the public airing of an egregious policy or act by a government agency – something similar to the revelation of the NSA’s domestic spying program[179] – before Congress can muster the political will to provide the guidance judges, legislators and interest groups have already requested.

2. Thinking Beyond the Current Proposed Legislation

Citing a need to “change some of the weaknesses in current Fourth Amendment doctrine,” some scholars the rise of the surveillance state as a natural evolution which requires legislative, administrative and technological solutions as well.[180] Yale Law School’s Jack Balkin would have Congress pass “superstatutes”[181] that would limit the kinds of data could collect and institute the destruction of data at a certain predetermined point in time, thereby preventing abuse. He would also regulate conduct over private companies and create oversight mechanisms over the executive bureaucracies that collect and use information. Ostensibly because he sees a warrant system as either redundant or burdensome, he suggests that it could be replaced with a “system of prior disclosure [that a target was being watched] and subsequent regular reporting and minimization.”

Leaving the idea of whether some statutes are quasi-constitutional in their breadth and therefore “super-statutes” behind, it seems that Congress has been on this path for many years as many limitations on what information can be collected by both the government and private industry are already in place.[182] In January of 2014 President Obama, acknowledging “the vulnerabilities to privacy that exist in a world where … even our movements can increasingly be tracked through the GPS on our phones” announced a reform of Governmental surveillance procedures with an emphasis towards greater transparency. The effectiveness what is ultimately implemented remains to be seen.

Balkin’s last proposition – that a mechanism for prior disclosure with subsequent reporting and minimization – lacks much detail but seems so facially unconstitutional in GPS context that it is hard to see how it could be implemented for long. The Fourth Amendment presupposes a person’s right to be free from unreasonable government interference unless a showing of probable cause can be made to a member of the judiciary and a warrant can then be issued describing why the Government has found a reason to circumscribe a person’s privacy. Even in cases of exigency, courts have found it prudent to memorialize the reasons that justified, in the court’s mind, the interference. Going back to Semayne’s Case, notification of the interference was seen as part of recognizing that a person had a right to know that he was being searched and why. To allow a court to authorize surreptitious surveillance without the mechanism of a well-established constitutional baseline (i.e. a warrant proceeding)[183] seems to take modification of Fourth Amendment jurisprudence down a path that would not long survive constitutional scrutiny.

CONCLUSION

We live in a world where technology is so omnipresent that we are more surprised when it proves to be fallible than infallible.[184]  Yet we also live in a country where we see our legislators continue to disappoint their constituents,[185] primarily because we would like them to act when it is required. Similarly, we have, at various times, looked to the Supreme Court to provide a ruling that might serve as a bright line or a catalyst for congressional action.[186] As ubiquitous as geolocation has become, neither branch has checked the executive in any consistent or meaningful way when it comes to the use of geolocation by law enforcement. Either one of two steps would be sufficient to clarify the matter substantially. The Supreme Court could decide that electronic surveillance of one’s movements without some judicial review violates a reasonable expectation of privacy. Alternatively or additionally, Congress could update the Electronic Privacy Communications Act to establish that use of a private cell or smartphone to track a person’s movements makes that phone a tracking device. Calls for “super-statutes” or untimely pronouncements of the demise of the Fourth Amendment are perhaps intriguing but they seem premature. The Fourth Amendment has survived the Civil War, McCarthyism, and a variety of other barrages relatively intact and adept at protecting what it is intended to protect – a person’s right to privacy and freedom from unchecked governmental interference in their affairs. The courts have regularly been characterized as “guardians of the Constitution.”[187] It seems very little to ask those who swear an allegiance to protect and defend that same Constitution by either interpreting it or strengthening it for the 21st century.

[1] While the term “geolocation” is not currently found in either the Oxford English Dictionary or the Merriam-Webster Dictionary, the term has found common usage among judges, academics and the general public. For the purposes of this paper, I will use the description found on WIKIPEDIA (http://en.wikipedia.org/wiki/Geolocation), which comports with its use in case law. Therefore, “Geolocation is the identification of the real-world geographic location of an object, such as a radar [sic], mobile phone or an Internet-connected computer terminal.” This paper will refine the definition to concentrate solely on the locating of smart and cell phones or their owners when they have them in their possession.

[2] In re Smartphone Geolocation Data Application, 2013 WL 5583711 at *8 (E.D.N.Y. May 1, 2013).

[3] Susannah Fox, Internet Use in the U.S., Pew Research Internet Project (August 2, 2011), http://www.pewinternet.org/2011/08/02/internet-use-in-the-u-s/;  Angie Castillo, RedOxygen, American Phones are Getting Smarter (May 9, 2012) http://www.redoxygen.com/desktop-texting/?p=738.

[4] The FCC’s Wireless Rules, FCC, http://www.fcc.gov/guides/wireless-911-services (describing Phase II E911 rules which require service providers to provide Public Safety Answering Points with the latitude and longitude of the caller with an accuracy of “within 50 to 300 meters depending upon the type of location technology used.”).

[5] See e.g., http://www.google.com/mobile/maps/

[6] See e.g., https://foursquare.com/

[7] See e.g., http://www.match.com/Mobile/Index/

[8] Steven Lawson, Ten Ways Your Smartphone Knows Where You Are, PCWorld (April 6, 2012), http://www.pcworld.com/article/253354/ten_ways_your_smartphone_knows_where_you_are.html (“Avi Greengart of Current Analysis … believes cellphone location is in its second stage, moving beyond basic mapping and directions to social and other applications…. The third stage may bring uses we haven’t even foreseen.).

[9] Justin Elliot, Police Tapped Sprint Customer GPS Data 8 Million Times In A Year, TPM Muckraker (December 4, 2009, updated May 13, 2014) http://talkingpointsmemo.com/muckraker/police-tapped-sprint-customer-gps-data-em-8-million-em-times-in-a-year (“Under a new system set up by Sprint, law enforcement agencies have gotten GPS data from the company about its wireless customers 8 million times in about a year, raising a host of questions about consumer privacy, transparency, and oversight of how police obtain location data.’).

[10] See e.g., Susan Freiwald, Cell Phone Location Data and the Fourth Amendment: a Question of Law,

Not Fact, 70 Md. L. Rev. 681(2011).

[11] See e.g., McCann Investigations, Case Study: Cyber Stalking and Spyware in Divorce Cases, PR Web  (retrieved May 15, 2014) http://ww1.prweb.com/prfiles/2013/01/13/10319457/Cyber%20Stalking%20and%20Spyware%20in%20Divorce%20Cases.pdf.

[12] United States v. Jones, 132 S. Ct. 945, 956 (2012) (Sotomayor, J., concurring)(relying on Illinois v. Lidster, 540 U.S. 419, 426 (2004) “because GPS monitoring is cheap in comparison to conventional surveillance techniques and, by design, proceeds surreptitiously, it evades the ordinary checks that constrain abusive law enforcement practices: ‘limited police resources and community hostility.’”).

[13] In re Application of U.S. for an Order Authorizing Disclosure of Location Info. of a Specified Wireless Tel., 849 F. Supp. 2d 526, 534 (D. Md. 2011)(“Cellular service providers typically do not maintain records of the GPS coordinates of cellular telephones operating on their network, but the provider may generate such location data at any time by sending a signal directing the built-in satellite receiver in a particular cellular telephone to calculate its location and transmit the location data back to the service provider. This process, known as “pinging,” is undetectable to the cellular telephone user.”).

[14] See e.g., Id at 535.

[15] Requests for records created in the usual course of business with respect to telecommunications are generally handled under the Stored Communications Act. See, In re U.S. for Historical Cell Site Data, 724 F.3d 600, 608 (5th Cir. 2013)

[16] See e.g., In re Application, 849 F. Supp. 2d at 534.

[17] 2013 WL 5583711 (E.D.N.Y. May 1, 2013).

[18] 849 F. Supp. 2d 526 (D. Md. 2011).

[19] Id. at 532 (“…the issues presented will certainly arise again, most likely in urgent situations that do not allow an opportunity for deliberate consideration.”).

[20] Hon. Susan K. Gauvey

[21] In re Application, 849 F. Supp.2d at 532.

[22] Id. at 532 (“…the Court invited further argument and authorities from the government, appointed the Office of the Federal Public Defender to provide the defense perspective, and held a hearing. (ECF Nos. 4, 5, 7, 11, 12). The Court thanks the Office of the United States Attorney, the U.S. Department of Justice, and the Office of the Federal Public Defender for their briefing and argument.”).

[23] Id. at 537 – 66.

[24] Id. at 565-70.

[25] Id. at 570.

[26] Id. at 571 – 566.

[27] In re Application, 849 F. Supp.2d at 553.

[28] Id. at 539.

[29] Hon. Gary R. Brown

[30] 2013 WL 5583711 (E.D.N.Y. May 1, 2013).

[31] In re Smartphone Geolocation Data Application, 2013 WL 5583711 * 16 ( “… as to prospective geolocation data, cell phone users who fail to turn off their cell phones do not exhibit an expectation of privacy and such expectation would not be reasonable in any event.”).

[32]Katz v. United States, 389 U.S. 347(1967).

[33] United States v. Knotts, 460 U.S. 276, 282 (1983).

[34] Kyllo v. United States, 533 U.S. 27 (2001).

[35] United States v. Karo, 468 U.S. 705 (1984).

[36] United States v. Skinner, 690 F.3d 772 (6th Cir. 2013).

[37] United States v. Jones, 132 S. Ct. 945 (2012).

[38] Tarik N. Jallad, Old Answers to New Questions: Gps Surveillance and the Unwarranted Need for Warrants, 11 N.C. J. L. & Tech. 351, 352 (2010) (“The privacy violations arising from governmental abuse of GPS data from cellular phones and vehicle tracking systems are vast, thus legislative intervention is imperative.”)(footnote omitted).

[39] Marbury v. Madison, 5 U.S. 137, 177 (1803)(“It is emphatically the province and duty of the judicial department to say what the law is. Those who apply the rule to particular cases, must of necessity expound and interpret that rule.”).

[40] Recent instances include: United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012) cert. denied, 133 S. Ct. 2851 (U.S. 2013); and Jones, 132 S. Ct. at 950.

[41] U.S. Sup. Ct. R. 10, (“The following, although neither controlling nor fully measuring the Court’s discretion, indicate the character of the reasons the Court considers [in granting certiorari]: … [a] United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.”).

[42] The presumption, absent some mitigating factor, that judicial review is preferable prior to a search is well established in Fourth Amendment case law. Because of the lack of judicial guidance, many law enforcement agencies can avoid judicial review by citing the “good faith” exception. In other words, good faith reliance on the statute can circumvent judicial review of prospective surveillance. See e.g., United States v. Ventresca, 380 U.S. 102, 106-07 (1965)(“The fact that exceptions to the requirement that searches and seizures be undertaken only after obtaining a warrant are limited underscores the preference accorded police action taken under a warrant as against searches and seizures without one.”); See also, United States v. McCullough, 523 Fed.Appx. 82, 83 (2d Cir.2013) (“Under the good faith exception to the exclusionary rule, evidence obtained by an officer acting in objectively reasonable reliance on a statute will be admitted unless the statute was “clearly unconstitutional” at the time that the officer obtained the evidence”).

[43] In re Application, 849 F. Supp. 2d at 553; In re Smartphone, 2013 WL 5583711 at *11; See also, Jones, 132 S. Ct. at 947 (“Here, the Court need not address the Government’s contention that Jones had no ‘reasonable expectation of privacy [to her location],’ because Jones’s Fourth Amendment rights do not rise or fall with the Katz formulation…  The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test.”); See also, United States v. Martinez-Rodriguez, 2014 WL 127072 at *1 (D. Or. Jan. 10, 2014).

[44] Seyman’s Case, 5 Co. Rep. 91a, 91b, 77 Eng. Rep. 194, 195 (K. B. 1603). Opinion by: Sir Edward Coke (holding “That in all cases when the King is party, the sheriff (if the doors be not open) may break [into] the party’s house, either to arrest him or to do other execution of the King’s process, if otherwise he cannot enter. But before be breaks [into] it, he ought to signify the cause of his coming and to make request to open the doors.”).

[45] In the decades prior to the American Revolution and in the face of what was seen as an abuse of the power of the King to issue warrants, English courts began to require that there be a showing of probable cause for a governmental search or seizure to be lawful. In addition to abusive “general warrants,” Colonial courts faced challenges to “writs of assistance” which essentially allowed any person in the company of a civil officer to search any dwelling or business at any time for untaxed goods. Resistance to both these writs and general warrants are generally seen as the primary reason for constitutionally codifying a ban on the issuing of warrants in the absence of probable cause as well as a fundamental “right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures….” DANIEL B. YEAGER, 84 J. Crim. L. & Criminology 249, 309 footnote 24; William J. Stuntz, the Substantive Origins of Criminal Procedure, 105 Yale L.J. 393, 396 (1995); See also, Boyd v. United States, 116 U.S. 616, 624-25 (1886); But see, Thomas Y. Davies, Can You Handle the Truth? The Framers Preserved Common-Law Criminal Arrest and Search Rules in “Due Process of Law”-“Fourth Amendment Reasonableness” Is Only A Modern, Destructive, Judicial Myth, 43 Tex. Tech L. Rev. 51, 66 (2010)(arguing that “the historical sources reveal that there was no single, unified body of legal doctrine regarding arrests and searches during the period in which the state and federal bills of rights were initially framed…” and therefore interpreting general warrants and writs of assistance as the primary concern of the framers may be misguided).

[46] See generally, Mount, S. Constitutional topic: Bill of Rights (2010) http://www.usconstitution.net/consttop_bor.html.

[47] In re Application, 849 F. Supp. 2d at 537 (D. Md. 2011); U.S. Const. amend IV.

[48] See, e.g., Jones, 132 S. Ct. at 945.

[49] 389 U.S. 347 (1967).

[50] Katz v. United States, 389 U.S. 347, 353 (1967).

[51] Id. at 360 (1967) (Harlan,J. Concurring).

[52] Id.

[53] Id at 361.

[54] Jace C. Gatewood, It’s Raining Katz and Jones: The Implications of United States v. Jones-A Case of Sound and Fury, 33 Pace L. Rev. 683, 694 (2013)(“While Justice Alito was clear to note that the Katz reasonable expectation of privacy test has its complications, he also notes that the Katz test avoids several key problems raised by the majority opinion [in Jones].”); Jones, 132 S. Ct. at  953 (“Situations involving merely the transmission of electronic signals without trespass would remain subject to Katz analysis.”).

[55] 460 U.S. 276 (1983).

[56] Id at 281-82.

[57] 533 U.S. 27 (2001).

[58] Id at 34.

[59] United States v. Karo, 468 U.S. 705, 715 – 716 (1984)(“The monitoring of an electronic device such as a beeper is, of course, less intrusive than a full-scale search, but it does reveal a critical fact about the interior of the premises that the Government is extremely interested in knowing and that it could not have otherwise obtained without a warrant.”).

[60] Just under nine months after the Jones decision was released, a Massachusetts District Court judge, when faced with factually similar case, wrote in an opinion, “ For all it decided, the Jones decision left a number of issues unresolved, among them 1) whether the government must obtain a warrant to … use a GPS tracking device, 2) if not, what quantum of suspicion is required (e.g., probable cause, reasonable suspicion), 3) if the Fourth Amendment is violated, whether the exclusionary rule requires suppression and 4) if so, what evidence must be suppressed.” United States v. Rose, 914 F. Supp. 2d 15, 22 (D. Mass. 2012).

[61] Jones, 132 S. Ct. at 957 (Alito, J., concurring).

[62] Id. at 950.

[63] Id. at 947 (“The Katz reasonable-expectation-of-privacy test has been added to, but not substituted for, the common-law trespassory test.”).

[64] United States v. Skinner, 690 F.3d 772, 777 (6th Cir. 2012) cert. denied, 133 S. Ct. 2851 (U.S. 2013) (“If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.”).

[65] See e.g., Jace C. Gatewood, It’s Raining Katz and Jones: The Implications of United States v. Jones-A Case of Sound and Fury, 33 Pace L. Rev. 683 (2013) (“Reading the highly anticipated decision of United States v. Jones, concerning the constitutionality of the installation and use by police of a GPS tracking device without a warrant, was much like waking up Christmas morning only to find out that you did not get everything on your Christmas list. Santa not only did not bring you everything on your list, but also forgot all the good stuff.”).

[66] In re U.S. for Historical Cell Site Data, 724 F.3d 600, 606 (5th Cir. 2013)(considering a request for historical cell site data, “We review this ruling, applying Katz v. United States and its progeny to determine whether the Government’s acquisition of these electronic records constitutes a search or a seizure subject to the Fourth Amendment’s probable cause.”).

[67] In re Application, 849 F. Supp. 2d at 538 – 544.

[68] Id at 539.

[69] Id at 540.

[70] United States v. Karo, 468 U.S. 705, 715 – 716 (1984).

[71] In re Application,849 F. Supp. 2d at 543.

[72] Compare United States v. Maynard, 615 F.3d 544 (D.C. Cir. 2010), with United States v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010).

[73] Jones, 132 S. Ct. at 956 (Sotomayor, J., concurring)(“Awareness that the Government may be watching chills associational and expressive freedoms. And the Government’s unrestrained power to assemble data that reveal private aspects of identity is susceptible to abuse. The net result is that GPS monitoring—by making available at a relatively low cost such a substantial quantum of intimate information about any person whom the Government, in its unfettered discretion, chooses to track—may alter the relationship between citizen and government in a way that is inimical to democratic society.”)(internal quotations omitted).

[74] People v. Weaver, 12 N.Y.3d 433, 441-42 (N.Y. 2009).

[75] United States v. Cuevas–Perez, 640 F.3d 272, 285 (C.A.7 2011) (Flaum, J., concurring).

[76] Christopher Slobogin, Is the Fourth Amendment Relevant in a Technological Age?, in Constitution 3.0,    , (Jeffrey Rosen & Benjamin Wittes, eds., 2011) (seeing the current jurisprudence as being “mired in precedent decided in another era” and arguing for reform by creating a “technologically sensitive” Fourth Amendment that would have to justify “privacy-invading” virtual searches in direct relation to their level of intrusiveness.).

[77] Brief of the American Civil Liberties Union and ACLU of the Nation’s Capital as Amici Curiae in Support of Respondent at 16, United States v. Jones, 132 S. Ct. 945 (2012).

[78] In re Smartphone Geolocation Data Application, 2013 WL 5583711 at * 13(E.D.N.Y. May 1, 2013)

[79] Id. (relying on, United States v. Miller, 425 U.S. 443 (1976); and, Smith v. Maryland,, 442 U.S. 735 (1979)).

[80] Id.

[81] Id. at *16.

[82] Id at *8 (noting that “The newsworthiness of cell phone tracking as a concept has waned, confirming that geolocation has moved from the unfamiliar to the commonplace.”).

[83] In re Smartphone, 2013 WL 5583711 at *9(offering “Footpath Technology,” the “Find My Phone” app, and the “Girls Around Me” app as examples).

[84] Id at *10.

[85] Timothy B. Lee, Groups seek to overturn ruling allowing warrantless phone tracking, Ars Technica  (September 5, 2010, 3:50PM), http://arstechnica.com/tech-policy/2012/09/groups-seek-to-overturn-ruling-allowing-warrantless-phone-tracking/.

[86] 690 F.3d 772 (6th Cir. 2013).

[87] Skinner, 690 F.3d at 777 (“There is no Fourth Amendment violation because [subject] Skinner did not have a reasonable expectation of privacy in the data given off by his voluntarily procured pay-as-you-go cell phone. If a tool used to transport contraband gives off a signal that can be tracked for location, certainly the police can track the signal.”).

[88] Id. at 779 (“…we determine whether a defendant’s reasonable expectation of privacy has been violated by looking at what the defendant is disclosing to the public….).

[89] Id. at 786(Donald, J., concurring).

[90] Id. at 788 (footnote 1)(“We do not mean to suggest that there was no reasonable expectation of privacy because Skinner’s phone was used in the commission of a crime, or that the cell phone was illegally possessed …. an innocent actor would similarly lack a reasonable expectation of privacy in the inherent external locatability (sic) of a tool that he or she bought.”).

[91] Id.at 774.

[92] United States v. Caraballo, 963 F. Supp. 2d 341 (D. Vt. 2013).

[93] Id.

[94] Id. at 362. (“Sprint Nextel’s general terms and conditions of service and its privacy policies underscore the conclusion that Defendant did not retain an actual subjective expectation of privacy in his real time location data in an exigent situation. In 2011, Sprint Nextel advised its customers that it collects information regarding the location of its customers’ cell phones while in use, it generally knows where those cell phones are, and it “may access, monitor, use or disclose [that] personal information or communications to do things like: … comply with the law or respond to lawful requests or legal process … [and] respond to emergencies….”).

[95] Id. at 363.

[96] Missouri v. McNeely, 133 S. Ct. 1552, 1558-59 (2013)(internal quotations and citations omitted).

[97] In re Smartphone, 2013 WL 5583711 at *3 (E.D.N.Y. May 1, 2013)(“Because of the exigency of the situation, the undersigned granted both applications, issuing a short form order indicating a full opinion would follow.”).

[98] Caraballo, 963 F. Supp. 2d at 363-64 (noting a reasonability test and six factors to be considered under Second Circuit case law).

[99] Knotts, 460 U.S. at 282; Miller, 425 U.S. at 443 (“This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”).

[100] Amanda Lenhart, Cell Phones and American Adults, Pew Research Internet Project (September 2, 2010), http://www.pewinternet.org/2010/09/02/cell-phones-and-american-adults/.

[101] Id.

[102] Riley v. California, 134 S. Ct. 999 (2014)(granting certiorari).

[103] See, e.g., United States v. Forest, 355 F.3d 942, 951 (2005).

[104] Brief of the American Civil Liberties Union and ACLU of the Nation’s Capital as Amici Curiae in Support of Respondent at 13 – 19, United States v. Jones, 132 S. Ct. 945 (2012).

[105] See, e.g., Miller, 425 U.S. at 443 (“This Court has held repeatedly that the Fourth Amendment does not prohibit the obtaining of information revealed to a third party and conveyed by him to Government authorities, even if the information is revealed on the assumption that it will be used only for a limited purpose and the confidence placed in the third party will not be betrayed.”); See also, Smith v. Maryland, 442 U.S. 735, 743 (1979).

[106] In re Smartphone, 2013 WL 5583711 at *15.

[107] Id. (“The user agreements and related privacy policies executed by cell phone users with telecommunication providers and smartphone manufacturers provide additional support for the precept that cell phone users knowingly and voluntarily convey geolocation data to those entities.”).

[108] In re Smartphone, 2013 WL 5583711at *8 (quoting Eric Lichtblau, Police Are Using Phone Tracking as a Routine Tool, N.Y. Times ( Mar. 31, 2012), http:// www.nytimes.com/2012/04/01/us/police-tracking-of-cellphones-raises-privacy-fears.html?pagewanted=all).

[109] Id at *9 (relying on Catherine Crump, Are the police tracking your calls?, CNN, (May 21, 2012) http://www.cnn.com/2012/05/22/opinion/crump-cellphone-privacy).

[110] See generally, Samuel R. Gross & Debra Livingston, Racial Profiling Under Attack, 102 Colum. L. Rev. 1413, 1416 (2002)(“A pair of comparatively old Supreme Court cases [United States v. Martinez-Fuerte, 428 U.S. 543, 565-66 (1976); United States v. Brignoni-Ponce, 422 U.S. 873, 887-88 (1975)]suggests that under the Fourth Amendment it is constitutional to use race as one factor among several for a decision to stop a person, but not as the sole basis. Some courts continue to follow that rule; others have held that race may not be included in a profile that is used as a basis for individualized suspicion under the Fourth Amendment.”)(internal footnotes and citations omitted.).

[111]See Brian Dolan, GPS bracelet for people with autism or Alzheimer’s, MobiHealthNews (April 27, 2011), http://mobihealthnews.com/10802/gps-bracelet-for-people-with-autism-or-alzheimers/ for an example of GPS products offered to allow families to track people with cognitive disorders.

[112] In re Smartphone, 2013 WL 5583711 at *12 (citing United States v. Pascual, 502 Fed.Appx. 75, 80 (2d Cir.2012) cert. denied, 134 S. Ct. 231 (U.S. 2013)).

[113] Id.

[114] Pascual, 502 F. App’x at 80.

[115] See e.g., David H. Goetz, Locating Location Privacy, 26 Berkeley Tech. L.J. 823, 824 (2011)(arguing “that warrantless and continuous tracking by law enforcement is an encroachment on basic Fourth Amendment rights due to the intrusive and private nature of the information thus obtained.”); But see, Skinner, 690 F.3d 772(stating that there is no right to privacy for cell phone users who are innocent actors).

[116] See generally, U.S. Const. amend. IX; c.f., 1 Annals of Cong. 435 (Joseph Gales ed., 1789)(explaining that in the proposing that certain rights be enumerated in the Constitution that this enumeration “shall not be so construed as to diminish the just importance of other rights retained by the people, or as to enlarge the powers delegated by the Constitution; but either as actual limitations of such powers, or as inserted merely for greater caution.”); See also,Phoebe A. Haddon, An Essay on the Ninth Amendment: Interpretation for the New World Order, 2 Temp. Pol. & Civ. Rts. L. Rev. 93, 117 (1992)(exploring the role of the Ninth Amendment in a modern context.)

[117] Caraballo, 963 F. Supp. 2d at 360.

[118] Id. at 362.

[119] Brigham City, Utah v. Stuart, 547 U.S. 398, 403 (2006) (citing Mincey v. Arizona, 437 U.S. 385, 393-394 (1978), “[W]arrants are generally required to search a person’s home or his person unless ‘the exigencies of the situation’ make the needs of law enforcement so compelling that the warrantless search is objectively reasonable under the Fourth Amendment.”).

[120] See e.g., Id. at 364 (D. Vt. 2013)(The Second Circuit has identified six [non-exhaustive] factors to assist in determining whether there are exigent circumstances: (1) the gravity or violent nature of the offense with which the suspect is to be charged; (2) whether the suspect “is reasonably believed to be armed”; (3) “a clear showing of probable cause … to believe that the suspect committed the crime”; (4) “strong reason to believe that the suspect is in the premises being entered”; (5) “a likelihood that the suspect will escape if not swiftly apprehended”; and (6) the peaceful circumstances of the entry.).

[121] See e.g., In re Smartphone, 2013 WL 5583711 at *3.

[122] See e.g.,United States v. Martyniuk, 395 F. Supp. 42 (D. Or. 1975) aff’d in part, rev’d in part sub nom. United States v. Hufford, 539 F.2d 32 (9th Cir. 1976).

[123] Electronic Communications Privacy Act of 1986, 18 U.S.C.A. § 3117

[124] 18 U.S.C.A. § 3117.

[125] Sophia Pearson, U.S. May Withhold Phone Tracking Data in Criminal Cases, Bloomberg (May 12, 2014), http://www.bloomberg.com/news/2014-05-09/u-s-can-keep-phone-data-from-aclu-in-cases-without-conviction.html (“We want to find out how the government is using cellphones as tracking devices,” ACLU Legal Director Arthur Spitzer said in a telephone interview. “The government was doing this without getting a warrant.”).

[126] See e.g.,  In re Application of U.S. for & order: (1) Authorizing Use of a Pen Register & Trap & Trace Device, (2) Authorizing Release of Subscriber & Other Info., (3) Authorizing Disclosure of Location-Based Servs., 727 F. Supp. 2d 571, 575, 2010 WL 3021950 (W.D. Tex. 2010)(denying a request for Cell Site Location Information which included a request for real time location information based on the “hybrid theory” which incorporates the Communications Assistance to Law Enforcement Act and the Stored Communications Act to show that the proper evidentiary burden is “specific and articulable facts showing that there are reasonable grounds to believe that the records or other information sought are relevant and material to an ongoing criminal investigation.”).

[127] 18 U.S.C. § 3117.

[128] In re Appplication

[129] Authorized pursuant to 18 U.S.C. §§ 2510–2522.

[130] Authorized under 18 U.S.C. § 3117.

[131] Authorized pursuant to the Stored Communications Act.

[132] Authorized under 18 U.S.C. §§ 3121–3127.

[133] In re Application of U.S. for an Order Authorizing Use of a Pen Register with Caller Identification Device Cell Site Location Auth. on a Cellular Tel., 2009 WL 159187 (S.D.N.Y. Jan. 13, 2009)

[134] In re Application, 849 F. Supp. 2d at 537.

[135] 18 U.S.C.A. § 3117(a)

[136] In re Smartphone.WL 5583711 at *18.

[137] Id. at *17 – 18.

[138] E.g.: Constructive trespass, trespass by relation, or trespass for mesne profits.

[139] 107 A.L.R.5th 549.

[140] See, Am. Online, Inc. v. IMS, 24 F. Supp. 2d 548 (E.D. Va. 1998)(applying trespass to chattels to unlawful spamming case); and Jones, 132 S. Ct. 945 (2012); But see, Quantlab Technologies Ltd. (BVI) v. Godlevsky, 719 F. Supp. 2d 766 (S.D. Tex. 2010)(holding that a claim for conversion in a case involving proprietary algorithms and software could not be maintained because Texas law only applies to physical property).

[141] See, e.g., eBay, Inc. v. Bidder’s Edge, Inc., 100 F. Supp. 2d 1058, 1071 (N.D. Cal. 2000); Baggett v. Hewlett-Packard Co., 582 F. Supp. 2d 1261, 1269, 2007 WL 5600703 (C.D. Cal. 2007)(“California law includes trespass to chattel claims based on automated systems. In other words, trespass to chattel claims survive even when the ultimate trespass is not accomplished by a human act.”).

[142] Quantlab Tech. Ltd., 719 F. Supp. 2d 766.

[143] 87 C.J.S. Trespass § 7

[144] Orin S. Kerr, The Fourth Amendment and New Technologies: Constitutional Myths and the Case for Caution, 102 Mich. L. Rev. 801, 816 (2004)(arguing “… that the mainstream academic understanding has often overlooked the continuing influence of property concepts…While existing scholarship often interprets the shift as a wholesale rejection of property-based principles in Fourth Amendment law, it is better understood as a shift of degree from common law rules to the looser property-based approach that currently governs.”).

[145] See e.g., Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566 (2012)(upholding an individual mandate to buy health insurance under Congress’ taxing power rather than the Commerce clause).

[146] United States v. Councilman, 418 F.3d 67, 79 (1st Cir. 2005)(holding that “temporarily stored e-mail messages…constitute electronic communications within the scope of the Wiretap Act); United States v. Brewer, 835 F.2d 550 (5th Cir. 1987) (holding that long distance telephone service access codes were “access devices,” within meaning of statute making it crime to possess or traffic in counterfeit or unauthorized access devices and there for a violation of 18 U.S.C.A. § 1029).

[147] See, e.g., S.E.C. v. SG Ltd., 265 F.3d 42 (1st Cir. 2001)(holding that “virtual shares” could be “investment contracts” for the purposes of stating a claim under the Securities Act of 1933 and the Securities Exchange Act of 1934).

[148] 132 Cong. Rec. H8977-02, 1986 WL 788077

[149] S. REP. 99-541, 2, 1986 U.S.C.C.A.N. 3555, 3556

[150] S. REP. 99-541, 3, 1986 U.S.C.C.A.N. 3555, 3557

[151] Jones, 132 S. Ct. at 964 (Alito, J., concurring) (“In circumstances involving dramatic technological change, the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.”)(internal citations omitted); see also, In re Smartphone, 2013 WL 5583711 *19 (footnote 32: “A refined definition of ‘tracking device’—among other issues—would provide welcome clarity for courts struggling to apply this legislation.”).

[152] Tarik N. Jallad, Old Answers to New Questions: Gps Surveillance and the Unwarranted Need for Warrants, 11 N.C. J. L. & Tech. 351, 352 (2010) (“The privacy violations arising from governmental abuse of GPS data from cellular phones and vehicle tracking systems are vast, thus legislative intervention is imperative.)(footnote omitted).

[153] See e.g., April A. Otterberg, Gps Tracking Technology: The Case for Revisiting Knotts and Shifting the Supreme Court’s Theory of the Public Space Under the Fourth Amendment, 46 B.C. L. Rev. 661, 704 (2005) (“In light of GPS tracking and other technologies functioning in the public space, the Supreme Court should shift its Fourth Amendment analysis to one that preserves some privacy within the public space and guarantees that technology does not further increase the capacity of police to collect personal data without any kind of physical intrusion.”); See also, Jeffrey Rosen, Cyberthreat, The Deciders: Facebook, Google, and the Future of Privacy and Free Speech, in Constitution 3.0,    , (Jeffrey Rosen & Benjamin Wittes, eds., 2011)(arguing that Justice Kennedy’s views in Griswold v. Connecticut and Lawrence v. Texas recognize a “far more sweeping principle of personal autonomy that might well protect individuals from totalizing forms of ubiquitous surveillance” and therefore require a rethinking of public and private distinctions in evaluating a privacy).

[154] Tarik N. Jallad, Old Answers to New Questions: Gps Surveillance and the Unwarranted Need for Warrants, 11 N.C. J. L. & Tech. 351, 374-75 (2010)

[155] Dana Liebelson, Google, Yahoo, Facebook, and Twitter Have a New Lobbying Target – the NSA, Mother Jones (November 15, 2013), http://www.motherjones.com/politics/2013/11/nsa-bills-google-facebook-yahoo-twitter-lobbying.

[156] Ton Scheck, Minnesota lawmakers fret about law enforcement clout, Post Bulletin (April 22, 2014), http://www.postbulletin.com/news/local/minnesota-lawamkers-fret-about-law-enforcement-clout/article_2a2fcf19-cdcb-57ec-a47a-11dbf30d78cf.html (quoting state Rep. Carly Melin, “I am starting to wonder who makes the laws around here,” and noting “Lawmakers who are trying to limit the amount of data collected by authorities say they’re also concerned with the pushback they’re seeing. They say police and prosecutors should enforce the law, not write it.”).
[157] Cyrus Farivar, Texas proposes one of nation’s “most sweeping” mobile privacy laws, Ars Technica (March 6, 2013), http://arstechnica.com/tech-policy/2013/03/texas-proposes-one-of-nations-most-sweeping-mobile-privacy-laws/
[158] See e.g., S. 1011 (112th): Electronic Communications Privacy Act Amendments Act of 2011 – died in committee
[159] H.R.1312 Geolocational Privacy and Surveillance Act or the GPS Act — 113th Congress (2013-2014) Geolocational Privacy and Surveillance Act or the GPS Act

[160] New GPS Tracking Law for Violators of Restraining Orders, Live View GPS (April 16, 2012) http://www.liveviewgps.com/blog/gps-tracking-law-violators-restraining-orders/ (explaining a Wisconsin law that allows police to monitor potential violators of restraining orders via GPS but subject to judicial review).

[161] Jack M Balkin, The Constitution in the National Security State, in The Constitution in 2020, 197, 206, (Jack M. Balkin & Reva B Seigel,  eds., 2009).

[162] S. 1700: Do Not Track Kids Act of 2013 (/congress/bills/113/s1700)

[163] H.R. 1312 (full text available at http://beta.congress.gov/bill/113th-congress/house-bill/1312/text) and S.639 (full text available at http://beta.congress.gov/bill/113th-congress/senate-bill/639/text)

[164] Full text available at http://beta.congress.gov/bill/113th-congress/house-bill/983/text)

[165] A United States Government website for “Official U.S. Government information about the Global Positioning System (GPS) and related topics”www.gps.gov

[166] http://www.gps.gov/policy/legislation/gps-act/

[167] Currently, Title 18 includes “Chapter 119—Wire and Electronic Communications Interception and Interception of Oral Communications” and “Chapter 121—Stored Wire and Electronic Communications and Transactional Records Access”

 

[168] Full text available at: http://www.law.cornell.edu/rules/frcrmp/rule_41

[169] Section by section summary available at: http://chaffetz.house.gov/sites/chaffetz.house.gov/files/GPS%20Section%20by%20Section.pdf

[170] Statements of support available at: http://chaffetz.house.gov/sites/chaffetz.house.gov/files/Statements%20of%20Support.pdf

[171] S. 639 – 113th Congress. Source: http://beta.congress.gov/bill/113th-congress/senate-bill/639/all-actions/

[172] Source: https://www.govtrack.us/congress/bills/113/s639 (giving the senate bill a “prognosis” of a 1% chance of being enacted and the house bill a 28% chance of being enacted).

[173] H.R.983 – Online Communications and Geolocation Protection Act https://www.govtrack.us/congress/bills/113/hr983 (7% chance of being enacted)

[174] 113th Congress (2013 – 2014)

[175] S. 2171

[176] Source: http://sunlightfoundation.com/blog/2014/01/16/congress-in-2013/#gplus (stating that only 15 of the 1,826 bills that were introduced by the Senate became laws)

[177] Press release, Chaffetz works to Protect Privacy with GPS Act (March 21, 2013)(available online at: http://chaffetz.house.gov/press-release/chaffetz-works-protect-privacy-gps-act ).

[178] The initiative includes online forms to “Tell Congress to Support the GPS Act!” (available at: https://ssl.capwiz.com/aclu-action/issues/alert/?alertid=63073346&type=CO&ms=oth_acluaction_140131_locationtracking_yt ).

[179] Zeke J. Miller, Exclusive: Repulican Party Calls For End To NSA Domestic Phone Records Program, Time (January 24, 2014), http://time.com/2156/exclusive-republican-party-calls-for-investigation-into-nsa-snooping/.

[180] Jack M Balkin, The Constitution in the National Security State, in The Constitution in 2020, 197, 206, (Jack M. Balkin & Reva B Seigel, eds., 2009).

[181] For more on “Super-statutes” see,  William N. Eskridge, Jr. & John Ferejohn, Super-Statutes, 50 Duke L.J. 1215 (2001)(“Some statutes reveal ambition but do not penetrate deeply into American norms or institutional practice. Even fewer statutes successfully penetrate public normative and institutional culture in a deep way. These last are what we call super-statutes…. A super-statute is a law or series of laws that (1) seeks to establish a new normative or institutional framework for state policy and (2) over time does “stick” in the public culture such that (3) the super-statute and its institutional or normative principles have a broad effect on the law– including an effect beyond the four corners of the statute.”).

[182] Barak Obama, Remarks by the President on Review of Signals Intelligence, The White House / The United States Department of Justice (Jan 17, 2014), http://www.whitehouse.gov/the-press-office/2014/01/17/remarks-president-review-signals-intelligence.

 

[183] Renee McDonald Hutchins, Tied Up in Knotts? Gps Technology and the Fourth Amendment, 55 UCLA L. Rev. 409, 461 (2007) (“Since Johnson, the Court has consistently declared its preference for warrants to be the presumptive baseline.”)

[184] Issac R, Porche III, Why Big Data Can’t Find the Missing Malaysian Plane, USNews and World Report (May 1, 2014), http://www.usnews.com/opinion/blogs/world-report/2014/05/01/why-big-data-cant-find-malaysia-airlines-flight-370.

[185] Justin McCarthy, No Improvement for Congress’ Job Approval Rating, Gallup Politics (April 10, 2014),   http://www.gallup.com/poll/168428/no-improvement-congressional-approval.aspx  (finding congressional approval at 13%).

[186] Jones, 132 S. Ct. 945 at 962-63 (Alito, J. concurring)(…“concern about new intrusions on privacy may spur the enactment of legislation to protect against these intrusions. This is what ultimately happened with respect to wiretapping. After Katz, Congress did not leave it to the courts to develop a body of Fourth Amendment case law governing that complex subject. Instead, Congress promptly enacted a comprehensive statute, see 18 U.S.C. §§ 2510–2522 (2006 ed. and Supp. IV), and since that time, the regulation of wiretapping has been governed primarily by statute and not by case law.”).

 

[187] See, e.g., Robert Justin Lipkin, What’s Wrong with Judicial Supremacy? What’s Right About Judicial Review?, 14 Widener L. Rev. 1, 10 (2008)(“The general rationale for judicial supremacy, following Hamilton, portrays judges as the “faithful guardians of the Constitution.’”).

 

 


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JOHNNY AND THE SCORPIONS: A Brief Look At The Mind Of John G. Roberts

Note: this article was originally published in VALLEY LAWYER

Judges are by their nature vexatious. Proof of this was readily apparent at a recent Republican debate wherein several candidates expressed their disapproval of the current Chief Justice of the United States Supreme Court, John G. Roberts – a justice nominated by a president and confirmed unanimously by Senators from their own party.[i]

But where this attribute is seen as a detriment in a litigant, for the robed figure on the bench, it can often be a quality. The worry, the distress, the vexation judges engender is often the by-product of their humanity, their intellectual evolution and, perhaps more succinctly, their pragmatic unpredictability. Therefore, if you accept the Justice Douglas’s premise that lawyers search “for moorings where clients can be safely anchored,” then the evolving judge may be, to paraphrase President Truman, no longer a lawyer’s friend. [ii], [iii]

It has been said that a judge comes to the bench reborn. Yet, from birth we try to cabin the newborn by trying to affix upon them a static and defining judicial philosophy. Nowhere is this phenomenon more visible than in the parlor game known as the Senate Confirmation Hearing.[iv] The rules of the game are relatively straightforward. Prospective justices are forbidden, pursuant to Judicial Ethics Canon 3-A(6) from publicly commenting on issues that may come before them in the future. Knowing this, the members of the Senate Judiciary Committee then provide lengthy commentaries on what they think makes a good candidate and summon their remembered legal skills to try to get the nominee to reveal how he or she would decide a future question. The justices repeatedly and tactfully decline the invitation. Ultimately, a vote is held with the participants generally unaffected by the debate.

Roberts, at his hearing dutifully avoided the questions but did share that he saw the role of a judge as analogous to that of an umpire at a baseball game.[v] His point was, because no one ever watches a game to see the umpire, that judges should act with a certain degree of humility. Much like Justice Robert H. Jackson, Roberts sees the role of the judicial branch as one of an intermediary between the branches that are (to extend the analogy) the players: the Executive and the Legislature.

Roberts was also no doubt aware that, as Chief Justice, he would be playing umpire to an additional team: the associate justices of the Supreme Court. Once described by a clerk for Justice Frankfurter as similar to “scorpions in a bottle,” Roberts saw success in his role as contingent upon being able to collegially tame the justices into avoiding academic, agenda-driven arguments and speaking with one voice as often as possible. [vi], [vii]

The most notorious set of “scorpions” were described in a 2010 book (of the same name) by Harvard Law Professor, Noah Feldman.[viii] Dismissed by some academics as hagiography, the book’s value lies in its juxtaposition of several foundational judicial philosophies, personified by four justices appointed by Roosevelt to reverse the excesses of the Lochner era court.[ix]

Felix Frankfurter, for example, saw judicial restraint as the best weapon for furthering liberal causes in an age when the judicially created fundamental “right to contract” was seen as an impediment to the New Deal agenda. Hugo Black asserted that the key to preventing conservative judicial overreach was strict adherence to the text of the constitution. William O. Douglas’ eschewed Black’s formalism and embraced legal realism’s emphasis on social interests and policy as the more meaningful decisional framework. (This view would be expanded by contemporaries like Earl Warren and Thurgood Marshal to create the concept of a “living constitution” which sees the Court has having an “additional role as the expounder of basic national ideals of individual liberty, even when the content of these ideas is not expressed as a matter of positive law in the written Constitution”).[x] Last, Robert H. Jackson’s reluctance to lay out a strict philosophy still betrays a Roberts-like pragmatism in his approach to the Court’s role as a tool for balancing the competing forces of the Legislature and Executive.

Perhaps it is in cognizance of conservative vilification of the liberal excesses of the 1960’s and 70’s that Roberts emphasized his “view that a certain humility should characterize the judicial role” in his hearings before the Senate Judiciary Committee. [xi]  Roberts claimed that he came to the bench with no agenda.[xii]  Agendas, Roberts asserted in a 2007 interview, hinder unanimity, ultimately eroding the Supreme Court’s credibility and legitimacy.[xiii] To this end, Roberts advised his colleagues on the bench that they should consider “the effect on the Court as an institution” when they write separately to dissent or concur.[xiv] This aversion to discord may be attributable to his experience in the D.C. Circuit, where “it is firmly embedded” that they should “function as a [unified] court.”[xv]

On the surface, it appears that Roberts’ notion of humility mirrors Justice Felix Frankfurter’s emphasis on “judicial restraint.” Frankfurter, an acolyte of Holmes and Brandeis, saw in the idea that “judges should not turn political beliefs into legal doctrine” a philosophical justification for undoing earlier court decisions which had found worker protection laws violative of “[t]he general right to make a contract …[,] part of the liberty of the individual protected by the Fourteenth Amendment….”[xvi], [xvii] Similarly, six decades later, the nominee Roberts found himself riding a backlash against “judicial activism” and, like Frankfurter, emphasized that “courts are passive institutions…. [without] the constitutional authority to execute …[or] make the law.”[xviii]

Perhaps unsurprisingly, applying this position has made Roberts the subject of criticism from both sides of the aisle. To the chagrin of conservatives, Roberts upheld the Affordable Care Act against an attack grounded in statutory construction, finding that in spite of the law’s “inartful drafting, … in every case we must respect the role of the Legislature, and take care not to undo what it has done.”[xix] And while Roberts believes that, in order to protect the Legislature’s role as voice of the people, “every reasonable construction must be resorted to, in order to save a statute from unconstitutionality,”[xx] where the legislature has not acted, he believes the Court should refrain from acting in its place. To the disappointment of liberals looking for a new ally, he expressed this point strongly – invoking the ghosts of Lochner and Dred Scott – while dissenting in the case striking down gay marriage bans. There, he accused the majority in Obergefell of succumbing to the temptation of “confus[ing its] own preferences with the requirements of the law.”[xxi] The admonition is compelling when framed as the answer to the question of “whether, in our democratic republic, [a] decision should rest with the people acting through their elected representatives, or with five lawyers who happen to hold commissions authorizing them to resolve legal disputes….”[xxii]

Frankfurter, in his day, was also confronted with a question of unequal treatment. When faced with the question of segregation on the basis of race, he wrote to a colleague that the “[l]aw must respond to transformation of views as well as to that of outward circumstances. The effect of changes in men’s feelings for what is right and just is equally relevant in determining whether differentiation of treatment by law is a denial of the equal protection of the laws.”[xxiii] While the speed with which legislatures are prepared to act is possibly a factor in both men’s reasoning, Roberts seems inclined to be exceedingly patient for Congress to voice the population’s feelings for what is right or just.

Arguably, none of the Scorpions’ philosophies have been so co-opted by conservatives as Hugo Black’s originalism: the view that “language and history … are the crucial factors” for constitutional interpretation, rather than “reasonableness or desirability as determined by justices of the Supreme Court.”[xxiv]  Therefore it is perhaps unsurprising that Roberts’ feels compelled in Obergerfell to mention that “[t]he Constitution itself says nothing about marriage,” inferring from this absence that “the Framers thereby entrusted the States with the whole subject of the domestic relations of husband and wife.”[xxv] Roberts has stated in the past that he has a preference for precedent over original intent.[xxvi] Still he has, from his very first dissent on the Court, regularly invoked originalism.[xxvii] And in this most recent session, he expressly chided a majority opinion that began, in his view, with policy rather than the Constitution.[xxviii]

In fact, a brief survey of his decisions reveals a more originalist bent than Roberts has openly acknowledged. In one notable case, Roberts found granting Congress the power to compel commerce (i.e. the purchase of health insurance) inappropriate in “the country the Framers of our Constitution envisioned.”[xxix] In another, the intention of the Framers is similarly invoked by the Chief Justice to give context to the applicability of international treaties in domestic law.[xxx] And at the end of a long and complicated affair that had devolved to a question on expert witness fees, Roberts included a three paragraph concurrence, asserting that Art. III § 2 makes it clear that the Supreme Court’s  appellate jurisdiction is subject to Congressional control but its original jurisdiction is not – adding, that“[t]he Framers presumably act[ed] intentionally and purposely” in making the distinction.[xxxi]

These allusions to originalism may also be perceived as warnings that, while Roberts may not share  Scalia’s affinity for a “dead Constitution,” his reasoning will not be comparable to that of Earl Warren, Warren Burger or, most notoriously, “Wild Bill” Douglas.[xxxii] For more than two decades, the Court adopted the Holmesian idea that constitutional questions “must be considered in the light of our whole experience and not merely in that of what was said a hundred years ago.”[xxxiii] From that proposition, they divined expansive and unwritten fundamental rights with respect to privacy (including decriminalizing abortions and freedom from anti-homosexual legislation) and forged new due process rights (including the right to be informed of one’s rights when taken into custody and requiring the state provide an attorney to indigent criminal defendants).[xxxiv]

Roberts, on the other hand, sees fundamental right claims as falling “into the most sensitive category of constitutional adjudication” and accordingly insists “that judges exercise the utmost care in identifying implied fundamental rights, lest [they] … be subtly transformed into the policy preferences of the Members (sic) of this Court.” [xxxv] Looking again to Roberts’s record, this exercise of care with respect to “creating” fundamental rights includes seeing the question of whether enemy detainees are entitled to habeas review as “an entirely speculative one” – at least until all of a detainee’s Congressionally created remedies have been exhausted.[xxxvi] Oddly, this same caution also apparently includes striking down portions of the Voting Rights Act – a legislatively imposed solution created to protect fundamental rights – because Roberts deems the law to be in contravention of another fundamental constitutional principle: “equal sovereignty among the States.”[xxxvii]

While it is unlikely that the liberal Justice Douglas would have reached the same result in Shelby, Roberts uses some very Douglas-like reasoning to reach his conclusions. For instance, Douglas has most often been identified with the philosophy of “legal realism,” which is said to be premised on the “divorce of the ‘is and the ought,’ i.e. of facts and values[.]”[xxxviii] Taking Roberts at his word, the fact that the VRA was duly deliberated and passed by Congress should be sufficient to invoke the duty to respect the Legislature’s role as voice of the people and require that “every reasonable construction … be resorted to, in order to save [the] statute from unconstitutionality.”[xxxix] Instead, Roberts clearly states that Congress ought to have used contemporary data that reflected contemporary conditions before reauthorizing the law.[xl] Summoning Holmes, he reminds us that “[s]triking down an Act of Congress is the gravest and most delicate duty that this Court is called on to perform.”[xli] But then he does exactly that. Regardless of whether this was “an exercise of pure will, fueled by a desire to change settled law”[xlii] or a reasoned expression of the belief that all states should be treated equally, the fact remains that Roberts is willing to show less judicial humility when he believes legislation to be based on a flawed premise.

This modified humility may also betray a link between his thinking and that of Robert H. Jackson. Jackson often emphasized that the Court could not rely on formalism if its rulings were to have real world legitimacy. As an example, where Jackson saw an alien held on Ellis Island whom the government argued was free to “leave in any direction but West,” he noted that “[i]t overworks legal fiction to say that one is free in law when by the commonest of common sense he is bound.”[xliii] To be sure, Jackson was no fan of following “impeccable legal logic … to … artificial and unreal conclusion[s].”[xliv] To compare, Roberts has often espoused the legal logic of judicial respect for the legislature. But where the legislature uses “40 year old data” to treat states unequally, upholding such a law would be, for Roberts, an artificial result. Therefore, he rejects it.

That Roberts finds himself at least occasionally intellectually aligned with Jackson should surprise no one. Roberts once clerked for William Rehnquist, who in turn clerked for Jackson. As a nominee for the D.C. Circuit Court of Appeals, Roberts wrote of his admiration for Jackson’s “common sense and pragmatism.”[xlv] It may also be of note that both men were brought to the Court at a time where there was a sentiment that the decisions of the previous decades were overly reflective of the personal views of the Justices. Jackson was, of course, brought on by Roosevelt to protect New Deal legislation from defeat at the hands of activists. Roberts was, arguably, in part nominated because his conservative bona fides were sufficient to ensure that he would not be a disappointment to those who saw activist judges as a form of liberal super-legislature.

Ultimately, their greatest similarity may be their de-emphasis on the importance of ideological labels or dogma. As one biographer noted, “[t]hings made sense to Jackson when they worked, when they did the job at hand, and ideas made least sense to him when they proved useless….”[xlvi] Roberts approach may be similar. When judicial humility would lead to an artificial result, it is abandoned. When originalism can serve the dual purpose of creating greater unanimity on the Court and expressing a just result, it is embraced. Where strict statutory construction would lead to undoing Congressional intent, a broader reading is called for. For the lawyer seeking a rigid approach upon which he can rely, this kind of pragmatism can prove problematic.

It is perhaps anecdotally interesting that former Supreme Court law clerk and current presidential candidate Ted Cruz has released a remake of Ronald Reagan’s “Bear in the Woods” campaign ad.[xlvii] In the modern version, a scorpion is substituted for the bear. The ad was widely criticized for never stating clearly what the scorpion is supposed to represent (Islamic terrorism, an influx of illegal aliens?).[xlviii] Still, one wonders if Cruz did not appreciate the irony of using Alexander Bickel’s anthropomorphic image of a Supreme Court Justice when asking “shouldn’t we recognize the scorpion for what it is…?”[xlix] Perhaps the answer is: vexatious.

 

 

[i] See David G. Savage, Chief Justice Roberts’ record isn’t conservative enough for some justices, Los Angeles Times, September 25, 2015 (available at: http://www.latimes.com/nation/la-na-roberts-conservative-backlash-20150924-story.html); Charles Babington, Roberts Confirmed as 17th Chief Justice, The Washington Post, September 30, 2005 (available at: http://www.washingtonpost.com/wp-dyn/content/article/2005/09/29/AR2005092900859.html )(“The Senate voted 78 to 22 to confirm Roberts. All 55 Republicans, half the 44 Democrats and independent Sen. James M. Jeffords (Vt.) voted yes.”;

[ii] William O. Douglas, “Stare decisis,” Speech delivered at the eighth annual Benjamin Cardozo Lecture at the New York City Bar on April 12th, 1949, reprinted in the Columbia Law Review, 49 Colum. L. Rev. 735.

[iii] David E. Rosenbaum, THE SUPREME COURT: News Analysis; Presidents May Disagree, but Justices Are Generally Loyal to Them, N.Y. Times, April 7, 1994 (available at:http://www.nytimes.com/1994/04/07/us/supreme-court-analysis-presidents-may-disagree-but-justices-are-generally-loyal.html ).

[iv] In all fairness, the “game” took a far more serious turn during the hearings held for Clarence Thomas and Douglas Ginsburg where substantive issues were addressed.

[v] Confirmation Hearing on the Nomination of John G. Roberts, Jr. to be Chief Justice of the United States: Hearing Before the S. Comm. on the Judiciary, 109th Cong. at 55 (2005)(hereafter “Hearings”).

[vi] Yale Law Professor, Alexander Bickel.

[vii] Jeffrey Rosen, Roberts’s Rules, The Atlantic, January / February 2007.

[viii] Noah Feldman, Scorpions: the battles and triumphs of FDR’s great Supreme Court justices, (1st ed. 2010).

[ix] Eric A. Posner, The Four Tops, The New Republic, October 14, 2010 (available at: http://www.newrepublic.com/book/review/the-four-tops-roosvelt-supreme-court ).

[x] Thomas C. Grey, DO WE HAVE AN UNWRITTEN CONSTITUTION?, 27 Stan. L. Rev. 703,706.

[xi] Hearings at 55.

[xii] Id at 56.

[xiii] Rosen, Roberts’s Rules, supra.

[xiv] Id.

[xv] Id.

[xvi] Feldman, supra at 31.

[xvii] Lochner v. New York, 198 U.S. 45, 53 (1905).

[xviii] Hearings at 206.

[xix] King v. Burwell, 135 S. Ct. 2480, 2483 (“inartful drafting”), 2496 (respecting the role of the legislature).

[xx] Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566,2594 (quoting Hooper v. California, 15 S. Ct. 207 (1895)).

[xxi] Obergefell v. Hodges, 135 S. Ct. 2584, 2612 (2015).

[xxii] Id.

[xxiii] Christopher W. Schmidt, “Freedom Comes Only from the Law”: The Debate over Law’s Capacity and the Making of Brown v. Board of Education, 2008 Utah L. Rev. 1493, 1542 (2008)(citing Memorandum from Justice Felix Frankfurter 2 (Sept. 26, 1952), Earl Warren Papers, Container 571, Manuscripts Division, Library of Congress, Washington, D.C.)(internal quotations omitted).

[xxiv] HUGO L. BLACK, A Constitutional Faith, at 14 (1968), taken from Michael J. Gerhardt, A Tale of Two Textualists: A Critical Comparison of Justices Black and Scalia, 74 B.U. L. Rev. 25, 66 (1994).

[xxv] Obergefell, at 2613-14 (internal citations omitted).

[xxvi] Jeffrey Rosen, Originalism, Precedent, and Judicial Restraint, 34 Harv. J.L. & Pub. Pol’y 129, 130 (2011)(citing Hearings at 55-56, 550 (statement of John G. Roberts, Jr., Nominee, Chief Justice of the United States Supreme Court)).

[xxvii] Danforth v. Minnesota, 552 U.S. 264, 292 (2008)(Roberts, J., dissenting)(“[The majority’s] result is contrary to the Supremacy Clause and the Framers’ decision to vest in “one supreme Court” the responsibility and authority to ensure the uniformity of federal law. Because the Constitution requires us to be more jealous of that responsibility and authority, I respectfully dissent.”).

[xxviii] Ariz. State Legislature v. Ariz. Indep. Redistricting Comm’n., 135 S. Ct. 2652, 2678 (2015)( Roberts, J., dissenting).

[xxix] Nat’l Fed’n of Indep. Bus. v. Sebelius, 132 S. Ct. 2566, 2589 (2012).

[xxx] Medellin v. Texas, 552 U.S. 491, 515 (2008)(“Our Framers … also recognized that treaties could create federal law, but again through the political branches, …. The dissent’s understanding of the treaty route, … cannot readily be ascribed to those same Framers.”).

[xxxi] Kansas v. Colorado, 556 U.S. 98, 110 (2009)(internal citations omitted).

[xxxii] Tasha Tsiaperas, Constitution a ‘dead, dead, dead” document, Scalia tells SMU audience, Dallas Morning News, January 28, 2015 (available at: http://www.dallasnews.com/news/community-news/park-cities/headlines/20130128-supreme-court-justice-scalia-offers-perspective-on-the-law-at-smu-lecture.ece ).

[xxxiii] Missouri v. Holland, 252 U.S. 416, 433 (1920).

[xxxiv] Roe v. Wade, 410 U.S. 113, 164 (1973) holding modified by Planned Parenthood of Se. Pennsylvania v. Casey, 505 U.S. 833 (1992)(abortions); Lawrence v. Texas, 539 U.S. 558, 578 (2003)(sodomy); Miranda v. Arizona, 384 U.S. 436, 444 (1966)(advisement of rights);Gideon v. Wainwright, 372 U.S. 335, 339-40 (1963)(right to counsel).

[xxxv] Obergefell, at 2616 (2015)(internal citations omitted).

[xxxvi] Boumediene v. Bush, 553 U.S. 723, 805 (2008).

[xxxvii] Shelby Cnty., Ala. v. Holder, 133 S. Ct. 2612, 2616 (2013)(internal citations omitted).

[xxxviii] See e.g., Legal Realism, N.J. Law., OCTOBER 2000, at 30, 3.

[xxxix] Nat’l Fed’n of Indep. Bus. at 2594.

[xl] Shelby Cnty., at 2627-31 (2013) (Roberts grounds his decision in the belief that legislative remedies must “speak to current conditions” rather than “decades-old data and eradicated practices.”).

[xli] Shelby Cnty., at 2631 (citing, Blodgett v. Holden, 275 U.S. 142, 148 (1927) (Holmes, J., concurring)(internal quotation marks omitted).

[xlii] Linda Greenhouse, The Real John Roberts Emerges, N.Y. Times, June 29, 2013, p. SR 1.

[xliii] Shaughnessy v. United States ex rel. Mezei, 345 U.S. 206, 220 (1953).

[xliv] Id.

[xlv] John Q. Barrett, John Roberts and Justice Jackson, The Jackson List.com, July 28, 2005 (available at: http://thejacksonlist.com/wp-content/uploads/2014/02/20050728-Jackson-List-John-Roberts.pdf )

[xlvi] John Q. Barrett, A Commander’s Power, A Civilian’s Reason: Justice Jackson’s Korematsu Dissent, Law & Contemp. Probs., Spring 2005, at 57, 70.

[xlvii] “Scorpions” Political advertisement created by Ted Cruz 2016 (available at:  https://www.youtube.com/watch?t=26&v=f4K_uFZW9Jk).

[xlviii] See e.g., Stephen Stromberg, Ted Cruz’s dog-whistling ‘scorpion’ ad, Washington Post Op Ed., September 16, 2015 (available at: http://www.washingtonpost.com/blogs/post-partisan/wp/2015/09/16/ted-cruzs-dog-whistling-scorpion-ad/); Also, Cobert mocks Ted Cruz’s “Scorpion In The Desert” Ad:Is it Terroism, Iran, Mexicans? Real Clear Politics Video, RealClearPolitics.com, September 17, 2015 (available at: http://www.realclearpolitics.com/video/2015/09/17/colbert_mocks_ted_cruzs_scorpion_in_the_desert_ad_is_it_terrorism_iran_mexicans.html).

[xlix] “Scorpions” video, supra.


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NEW TECHNOLOGY AND THE ANCIENT TORT OF TRESPASS: Can Fracking Be Undone By One Of The Legal System’s Oldest Torts?

 

Note: This article was previously published in THE FORUM – the newspaper of St. John’s University School of Law and the VALLEY LAWYER

I. Introduction

Energy independence has been an attractive goal for the United States for many decades.[1] Arguably, this country’s reliance on foreign fossil fuels has been a source of economic downturns,[2] created a form of national and international weakness and even led us to war.[3] So, when a convergence of extraction technologies and new discoveries of domestic natural gas plays occurred in the early 2000’s, there was a great deal of excitement regarding the possibility of the U.S. becoming both energy independent and eventually a net exporter. [4]

This new technology: hydraulic fracturing (or colloquially “fracking”) was in fact one that had been employed since the 1940’s[5] but had seen great improvements in efficiency over the years.[6] The size of the gas reserves that were suddenly brought into play were vast and spread widely over the lower forty-eight states promising new revenues and job creation. [7], [8]

But as the promise developed into the reality, some of the excitement subsided as harmful by-products were being associated with the windfall. Water sources were being polluted. Home values were being decimated in areas near fracking sites. Health concerns were being raised as the chemicals used in the process were being questioned as to how noxious they might be. And recent studies seem to be confirming these worries.

Now resistance to fracking among environmentalists and community organizers has hit a fever pitch with some municipalities and even entire states outright banning the process. [9] Community and nationwide groups have sprung up in resistance to allowing the practice to continue. With a good portion of the existing environmental legislation reflecting the interests of oil companies, citizens have begun looking to the courts to enjoin drillers and seek compensation for their damages. While settlements have become common, there are very few successful lawsuits where a fracking company is the defendant. This paper will explore one very old theory of liability and examine its application in the very modern context of hydraulic fracturing.

II. The Process and the Problem

Hydraulic fracturing or “fracking” is a method of extracting oil and gas found in previously difficult to reach subsurface geological formations.[10] The process separates and opens fractures in underground rock formations by pumping a mix of water, lubricants and “proppants”[11] at extremely high pressure to create fissures which allow trapped gas and oil to be recovered.[12] Because many companies have declared the cocktail of chemicals used in the process to be proprietary, it has been difficult to determine or predict fracking’s precise environmental impact. But some sources assert that over 70 different chemicals are used in these so called “fracking fluids” and most agree that the fluid composition essentially conforms to a standardized list of categories. [13], [14]  That is to say that the injected water contains:  “adilute acids,[15] biocides,[16] breakers,[17] corrosion inhibitors,[18] crosslinkers,[19] friction reducers,[20] gels,[21] potassium chloride,[22] oxygen scavengers,[23] pH adjusting agents,[24] scale inhibitors[25] and surfactants.”[26]

Estimates of the ratio of chemicals to water vary from .05% – 2% chemicals to 99.5% – 98% water[27] but some go as high as 10% of the fluid being comprised of chemicals and additives.[28]  If some estimates are correct that the average hydro-fracturing well requires 3 to 8 million gallons of water over its lifetime,[29] then a conservative calculation puts the amount of chemicals used  (discounting the water) at roughly 37,500 gallons per well.[30] More than 70% of that quantity, or 26,250 gallons of those chemicals, can remain in the surrounding permeable subsurface area.[31]

Often the challenge is that the same subsurface area contains water that is used in wells for drinking or what are legally classified as “percolating waters.” Percolating waters” were once described as those waters which “ooze, seep, or filter through the soil beneath the surface, without a defined channel, or in a course that is unknown and not discoverable from surface indications without excavation for that purpose”[32]

In fact, two concurrent problems can arise. The first is the introduction of the chemicals (including known and suspected carcinogens)[33] and the second is the forcing of natural gas into previously potable water. With respect to the latter, once iconic images of homeowners being able to light a fire at the end of their home garden hose or faucet have been dismissed by some state agencies and courts as having sources unrelated to fracking[34] or proven to be hoaxes. [35] Still, the comingling of potable water and fracking fluid creates serious health concerns.[36]

Understandably, when faced with the prospect of having a source of possible illness nearby and the financial implication for home valuations (including “environmental stigma”[37]), residents of communities have looked for both legislative and jurisprudential remedies. For example, on the legislative side, some communities have voted to ban the process altogether.[38] A search for relief in the courts has relied on a variety of theories of liability to limit the practice.[39] Some have asserted relatively modern assertions of damages such as failure to create a medical monitoring fund[40] but invariably almost every fracking suit contains a claim for the ancient tort of trespass.

III. Trespass: possession, entry,and damages

A trespass, at the most basic level is “a direct infringement of another’s right of possession.”[41] To succeed on a claim a plaintiff need only show: (1) possession of the property at the time the trespass was committed, (2) an unauthorized entry by the defendant; and (3) resulting damage to the plaintiff.[42] Or, put another way, a trespass is a physical act or force against an individual’s property, executed without the property owner’s consent which interferes with a possessory interest in that property.[43] Whether a plaintiff is required to show actual harm incident to damages is less clear and may depend on the type of possessory interest at stake and the intent of the defendant.[44] A trespass does not require that the person charged actually traverse the land; only that the person be the source of a trespassing instrumentality.[45] Also, the social utility of the trespasser’s actions do not usually excuse him from liability.[46] Since subsurface trespass has been a cognizable claim since at least the 1920’s,[47] it would seem relatively simple for a potential plaintiff to make a colorable claim of trespass where he finds fracking fluids in his subsurface property.

Possession

To establish a trespass it is fundamental that the claimant landowner have a possessory interest in land or property that is violated.[48] For many years the common law provided a simple rule for landowners: Cuius est solum eius est usque ad coelum et ad inferos, which, liberally translated, means that whoever owns a parcel of land owns the sky above it and the ground below.[49] Understanding that the modern era made such expansive definitions no longer practicable, landowners’ rights were limited to, at least above with respect to the sky, “as much of the space above the ground as the can occupy or use in connection with the land.”[50]

On the other hand, minerals found under a landowner’s property were generally something considered to be “constituent elements of the land itself.”[51] Usually when one thinks of minerals, they think along the lines given by the Merriam Webster Dictionary, that is to say “a substance (such as quartz, coal, petroleum, salt, etc.) that is naturally formed under the ground.”[52] Black’s Law Dictionary broadens the definition to include not only subsurface materials but “any inorganic material that has a definite chemical composition and specific physical properties that give it value.”[53] Since the term “mineral” is especially broad in in the legal sense, it is not surprising that courts have found that not only do gas and oil qualify as underground minerals, but, unless precluded by statute, underground water qualifies as well.[54]

Another linguistically challenging legal principle relevant to possession was introduced in the late 19th century when courts began to consider oil, water and gas – because of their transitory nature – as Feræ Naturæ, or analogous to wild animals.[55] As such, these mineral belonged to the owner only “so long as they are on or in [the owner’s land], and are subject to his control.”[56] Out of this reasoning grew the famous rule of “capture” which states that minerals, originally found under one landowner’s parcel, that are recovered through the drilling activities of an adjacent landowner, become the adjacent landowner’s property because the “fugacious”[57] mineral has “migrated” to the subsurface of the adjacent landowner’s parcel.[58] However, because of the indispensability of water for maintaining life, courts have not always applied the rule of capture as readily as they might in an oil and gas context.[59] Similarly, where the migration is forced by the adjacent parcel holder’s activities (e.g. through the injection of a liquid), some courts have refused the applicability of the rule of capture and found an actionable trespass.[60]

One notable view regarding possession was introduced in the Texas Supreme Court decision Coastal Oil & Gas Corp. v. Garza Energy Trust because it highlights the role of the possessory interest in a trespass inquiry. The plaintiff claiming trespass in Garza was a lessor with “only a royalty interest and the possibility of reverter”[61] This was fatal to his trespass claim because his interest was only reversionary rather than actual. The distinction is significant because many homes in the United States are sold without a conveyance of the mineral rights.[62] These rights are often retained by developers and later conveyed via lease agreements. A natural inference from this phenomenon is that a trespass claim may not be available to a surface owner who has somehow, either via lease or sale, separated his ownership of the land from his ownership of the minerals below, irrespective of the harm that may occur. So, using Garza’s logic, a lessor or someone who does currently own the mineral rights to their land cannot make a claim for subsurface trespass irrespective of the harm.

Entry

Because fracking is conducted underground, proving the actual entry of the fluids or gas belonging to a particular defendant into the subsurface property of the plaintiff has been problematic. In other words, the presence of fracking fluid under may establish and entry but it does not establish who has entered.  A tempting approach to establish entry where fracking fluid is found in the plaintiff’s groundwater is to employ the doctrine of res ipsa loquitur to establish that a negligent trespass has occurred.[63] The doctrine has been applied in contamination cases but proving that one defendant had exclusive control over the instrumentality of the harm can prove difficult where there are multiple drilling operations.[64] Additionally, assertions that a plaintiff’s groundwater was contaminated only after the arrival of neighboring fracking operations without more substantive proof of entry have been seen as relying on the fallacy post hoc ergo propter hoc.[65]

There have been some advances in isolating fracking fluids in percolating waters, including some very recent work using “tracers” (essentially testing water for boron and lithium isotopes related to fracking fluid), but even this new technology cannot trace back the water to a given drill site.[66] On the other hand, where there is only one potential source of the contaminant, entry is treated generally as being stipulated and courts move on to consider more contentious issues such as whether consent was given or the legitimacy of the ownership claim.[67]

Damages

The scope of damages claimed in fracking litigation run from the traditional to more modern forms.[68] This should be unsurprising given the ever increasing amount of evidence linking the process to environmental damage and health risks.[69]  Traditionally, the common law has always seen the damages in a trespass as “injury to the possession” (i.e. the right to absolute control over the thing). [70]  Some jurisdictions will require proof of actual harm from contamination of the property before damages or injunctive relief can be awarded.[71] But if a plaintiff can prove that the trespass was intentional, damages should be available even where there is no provable harm.[72]

The usual measure of damages for permanent injury to land is the fair market value of the land before and after the injury[73] but, where there are other damages, this is not the only award available.[74] Depending on the jurisdiction, a plaintiff may be able to recover “the benefits obtained” by the trespasser, including any profits from the activity.[75] Should a defendant succeed in proving that there was no threat to human health (because chemicals were below tolerable levels), a plaintiff may still recover cleanup costs.[76] Costs related to physical illness damages should be recoverable as well since “[t]he goal of tort damages is to compensate the injured landowner for any and all losses that result from the conduct for which the defendant is liable, including the loss of the use of the property, if any, and any separate injuries in the nature of discomfort, annoyance or physical illness.”[77]

Where a plaintiff may be required to show actual harm, some courts have issued Lone Pine orders compelling plaintiffs to show: the precise amount of the injurious chemical to which the plaintiff was exposed, the precise illness or disease alleged to have resulted from exposure to that chemical and evidence of causation.[78] The orders often specify that causation must be shown through expert testimony and failure to present that testimony can result in summary judgment for the defendant or a dismissal with prejudice.[79] A showing of this specificity can be difficult where the injurious chemical is also considered proprietary.[80] But the practice of issuing Lone Pine orders has been overturned at the appellate level. Specifically this happened in a case where the order was issued without allowing the plaintiffs to obtain sufficient information to make a prima facie showing that harm occurred and that the harm was related to the fracking activity.[81]

Nonetheless, civil awards are beginning to appear for illnesses and property damage related to fracking. In April of 2014 one family living in Decatur, Texas received $3 million dollars after experiencing nosebleeds, nausea and other symptoms. While the claim in Parr et al. v. Aruba Petroleum Inc. et al.,[82] sounded in nuisance, it was still seen as a major victory for plaintiffs claiming damages from fracking operations.

Unfortunately, such victories are relatively far and few between and some courts have engaged in some very tortured logic in an effort to find that no harm as occurred in a fracking case. For instance, in Garza, the Texas Supreme Court was presented with where the defendant used subsurface injection of fluids in an area where the geological formations are so tight that “natural gas cannot be commercially produced without hydraulic fracturing,”  – something that would seem to imply a bounded space. The defendants’ fracking operations led to drainage from the plaintiff’s subsurface property that would not have naturally occurred with traditional drilling techniques. The court in Garza felt it best to apply the rule of capture and dismiss the claim. To put it a little more crudely, the Texas Supreme Court found no harm where a party chased the wild animals off of another party’s land with the intention of keeping them. This seems like an odd proposition in a state where cattle rustling cases still are regularly decided against the accused.[83] The more grounded and truthful rationale probably lies in the concurrence which speaks to a public policy decision to encourage the production of natural gas.[84]

In any event it seems sure that damages, whether just to the proprietary interest or if manifested in direct physical symptoms, will continue to be a point of contention in future litigation.

IV. Conclusion

Fracking may have once provided hope that the U.S. would become energy independent with respect to fossil fuels and that hope may not be displaced. Still, the human cost of the process must be considered as well and it seems that every new study points to the fact that the health concerns of people living close to fracking operations are well founded. If tort law serves several functions, it most surely serves the function of “express[ing] our shared beliefs as to fundamental rules that govern the conduct of others in our society”[85] and “to vindicate social policy.”[86] Our society was constitutionally created with the idea of protecting property in mind.[87] So why would we forgo the right of a property owner to be free of trespassers just for the possibility of cheaper oil or more local energy when our collective health may be much more precious?

Sources:
[1] John Ydstie, Is U.S. Energy Independence Finally Within Reach?, NPR, (March 7, 2012 12:01am) available at:  http://www.npr.org/2012/03/07/148036966/is-u-s-energy-independence-finally-within-reach.
[2] Paul Lines, How the 1970’s Oil Crisis Affected the US Economy, Humanities 360, (August 4, 2011)  available at: http://www.humanities360.com/index.php/how-the-1970s-oil-crisis-affected-the-us-economy-11690/

[3] Nafeez Ahmed, Iraq invasion was about oil, The Guardian, (March 20, 2014) available at: http://www.theguardian.com/environment/earth-insight/2014/mar/20/iraq-war-oil-resources-energy-peak-scarcity-economy

[4] John Ydstie, Is U.S. Energy Independence Finally Within Reach?, NPR, (March 7, 2012 12:01am) available at:  http://www.npr.org/2012/03/07/148036966/is-u-s-energy-independence-finally-within-reach; Nicholas Sakelaris, Exxon: North America will be a net exporter, oil will last 150 years, Dallas Business Journal, (December 9, 2014) available at: http://www.bizjournals.com/dallas/news/2014/12/09/exxon-north-america-will-be-a-net-exporter-oil.html?page=all

[5] Craig Miner, Discovery! Cycles of Change in the Kansas Oil & Gas Industry 1860-1987, 218 (1987)(“Hydraulic fracturing techniques were being employed in Kansas oil fields as early as 1948.”).

[6] Susan Brantley and Anna Meyendorff, The Facts on Fracking, The New York Times, (March 13, 2013) available at: http://www.nytimes.com/2013/03/14/opinion/global/the-facts-on-fracking.html?pagewanted=all.

[7] Cassarah Brown, State Revenues and the Natural Gas Boom: an Assessment of State Oil and Gas Production Taxes, National Conference of State Legislatures, (June 2013) available at: http://www.ncsl.org/research/energy/state-revenues-and-the-natural-gas-boom.aspx

[8] Shale gas Boosting Job Creation, What Is Fracking (October 29, 2012) available at: http://www.what-is-fracking.com/shale-gas-boosting-job-creation/

[9] Thomas Kaplan, Citing Health Risks, Cuomo Bans Fracking in New York State, New York Times (December 17,2014) available at: http://www.nytimes.com/2014/12/18/nyregion/cuomo-to-ban-fracking-in-new-york-state-citing-health-risks.html  

[10] Joseph A. Dammel, Notes from Underground: Hydraulic Fracturing in the Marcellus Shale, 12 Minn. J.L. Sci. & Tech. 773, 774-75 (2011)

[11] “Proppants” or Proppant Agents are granular substances, including sand grains, aluminum pellets, or other material, that are carried in suspension by the fracturing fluid and serve to keep the cracks open when fracturing fluid is withdrawn after a fracture treatment. (Source: OilGasGlossary.com, http://www.oilgasglossary.com/propping_agent.html).

[12] Id.

[13] See e.g., http://fracfocus.org/chemical-use/what-chemicals-are-used

[14] Source: http://geology.com/energy/hydraulic-fracturing-fluids/

[15] E.g. hydrochloric acid or muriatic acid for helping dissolve minerals and initiate cracks in the rock

[16] E.g. glutaraldehyde for eliminating bacteria in the water that produce byproducts in the water that cause corrosion

[17] E.g. ammonium persulfate, allowing for a delayed break down of the gel polymer chains

[18] E.g. N n-dimethyl formamide to prevent pipe corrosion

[19] E.g. borate salts, to maintain fluid viscosity as temperature increase

[20] E.g. polyacrylamide and mineral oils to minimize friction between the fluid and the pipe

[21] E.g. guar gum or hydroxyethyl cellulose to “thickens the water in order to suspend the sand”

[22] To create a brine carrier fluid

[23] E.g. ammonium bisulfate, which removes oxygen from the water to prevent corrosion

[24] E.g. sodium or potassium carbonate, which “[m]aintains the effectiveness of other components, such as crosslinkers”

[25] E.g. ethylene glycol to prevent scale deposits in the pipe

[26] E.g. isoproponal to increase viscosity in the fracturing fluid

[27] Source: http://geology.com/energy/hydraulic-fracturing-fluids/

[28] Source: http://www.westword.com/2013-06-13/news/whats-in-fracking-fluid/full/

[29] Ground Water Protection Council; ALL Consulting, DOE Office of Fossil Energy and National Energy Technology Laboratory. pp. 56–66 (April 2009).

[30] 3 million gallons of fluid x (the average of .05% and 2% chemicals)

[31] Penny, Glenn S.; Conway, Michael W.; Lee, Wellington . Journal of Petroleum Technology (Society of Petroleum Engineers) 37 (6): 1071–1081Control and Modeling of Fluid Leakoff During Hydraulic Fracturing (June 1985) (“During the process, fracturing fluid leakoff loss of fracturing fluid from the fracture channel into the surrounding permeable rock occurs. If not controlled, it can exceed 70% of the injected volume.”).

[32] Clinchfield Coal Corp. v. Compton, 148 Va. 437 (1927)(adding that “[t]he fact that they may, in their underground course, at places come together so as to form veins or rivulets does not destroy their character as percolating waters.”).

[33] David Manthos and David Darling, Cancer-Causing Chemicals Unsed in 34% of Reported Fracking Operations, Skytruth, (January 22, 2013) available at: http://blog.skytruth.org/2013/01/carcinogens-fracking.html. (Known carcinogens used in one sample included naphthalene, benzyl chloride and formaldehyde.).

[34] Press release from Colorado Department of Natural Resources: State Oil and Gas Conservation Commission on the documentary “Gasland” (available at: http://cogcc.state.co.us/library/GASLAND%20DOC.pdf)

[35] See e.g., Order of 43rd Judicial District of Texas in the Matter of Steven and Shyla Lipsky v. Durant et al v. Alisa Rich dated February 16, 2012 (available at: http://www.barnettshalenews.com/documents/2012/legal/Court%20Order%20Denial%20of%20Lipsky%20Motion%20to%20Dismiss%20Range%20Counterclaim%202-16-2012.pdf).

[36] See e.g., National Institute of Environmental Health Services report: “Birth Outcomes and Maternal Residential Proximity to Natural Gas Development in Rural Colorado” (January 28, 2014)(finding a correlation between congenital heart defects in newborns and the mother’s living proximity to fracking wells)(available at: http://ehp.niehs.nih.gov/wp-content/uploads/122/1/ehp.1306722.pdf); National Institute of Environmental health Services Report: “Proximity to Natural Gas Wells and Reported Health Status: Results of a Household Survey in Washington County, Pennsylvania” (September 10, 2014)(finding higher incidences of skin conditions and upper respiratory conditions in people living less than  1 km from a fracking well compared to people living more than 2km from a well)(available at: http://ehp.niehs.nih.gov/wp-content/uploads/advpub/2014/9/ehp.1307732.pdf).

[37] See e.g., Chance v. BP Chemicals, Inc., 77 Ohio St. 3d 17, 27 (Ohio 1996).

[38] Peggy Heinkel-Wolfe, Denton Fracking Ban Passed in Landslide, Dallas News, (November 5, 2015) available at: http://www.dallasnews.com/news/politics/local-politics/20141105-denton-fracking-ban-passed-in-landslide1.ece ;Fracking Ban Passes in 2 of 3 California Counties, AP, (November 5, 2014) available at:  http://tbo.com/ap/politics/fracking-ban-passes-in–of–california-counties-ap_politics7f7fb83fc0a44cadb6ca30cbb138e468.

[39] 4 Toxic Torts Litigation Guide § 44:14 (noting trespass, negligence, negligence per se, and medical monitoring as a few of the theories of liability asserted in recent cases).

[40] See e.g., Berish v. Sw. Energy Prod. Co., 763 F. Supp. 2d 702 (M.D. Pa. 2011).

[41] Padilla v. Lawrence, 101 N.M. 556, 563 (N.M. 1984).

[42] 4 Modern Tort Law: Liability and Litigation § 38:1 (2d ed.)

[43] Ford v. Baltimore City Sheriff’s Office, 149 Md. App. 107, 129, 814 A.2d 127, 139, 2002 WL 31875122 (2002).

[44] Compare, Tibert v. Slominski, 692 N.W.2d 133, 137 (N.D. 2005)(“A person who commits a trespass is liable as a trespasser to the other irrespective of whether harm is thereby caused to any of his legally protected interests.”); Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 10 (Tex. 2008)(“…a landlord … must show more than the trespass—namely, actual permanent harm to the property of such sort as to affect the value of his interest.”).

[45] Herrin v. Sutherland, 74 Mont. 587 (Mont. 1925)(firing a shotgun over the land of another while not situated on the plaintiff’s land is a trespass).

[46] See e.g., Longenecker v. Zimmerman, 175 Kan. 719, 721 (Kan 1954)(“Since from every unauthorized entry into the close of another, the law infers some damage, nominal damages are recoverable therefor even though no substantial damages result and none are proved.”).

[47] See e.g,, Edwards v. Sims, 232 Ky. 791, 24 S.W.2d 619, 621 (Ky. 1929); Also, Gliptis v. Fifteen Oil Co., 204 La. 896, 904 (La. 1943).

[48] 75 Am. Jur. 2d Trespass § 20 (The elements of trespass to real property are possession of the property by the plaintiff when the alleged trespass was committed, an unauthorized entry by the defendant, and damage to the plaintiff from the trespass.).

[49] AD COELUM ET AD INFEROS, Black’s Law Dictionary (9th ed. 2009)

[50] United States v. Causby, 328 U.S. 256, 264 (1946).

[51] United States v. Shoshone Tribe of Indians of Wind River Reservation in Wyoming, 304 U.S. 111, 116 (1938). But see, Owen L. Anderson, Subsurface “Trespass”: A Man’s Subsurface Is Not His Castle, 49 Washburn L.J. 247 (2010)(arguing that “[t]he law of trespass need no more be the same two miles below the surface than two miles above” and therefore subsurface trespass should not be actionable when “the trespasser’s …intrusion accomplishes an important societal need, including private commercial needs, and so long as the subsurface owner suffers no actual and substantial damages,….”).

[52] “Mineral.” Merriam-Webster.com. Merriam-Webster, n.d. Web. 6 Nov. 2014. <http://www.merriam-webster.com/dictionary/mineral>.

[53] MINERAL, Black’s Law Dictionary (9th ed. 2009).

[54] See, Rosette Inc. v. United States, 277 F.3d 1222, 1228 (10th Cir. 2002)(“[The Supreme Court] concluded that water could in fact be a mineral in the broadest sense of the word.”); See also, Andrus v. Charlestone Stone Products Co., 436 U.S. 604 (1978)(holding  Congress did not intend water to be considered a locatable and valuable mineral for the purposes of a federal mining statute) But see¸ Butler v. Charles Powers Estate ex rel. Warren, 620 Pa. 1, 22, 65 A.3d 885, 898, 2013 WL 1749828 (2013)(“[T]he rule in Pennsylvania is that natural gas and oil simply are not minerals because they are not of a metallic nature, as the common person would understand minerals.”).

[55] Westmoreland & Cambria Nat. Gas Co. v. De Witt, 130 Pa. 235, 249-50 (1889).

[56] Id.

[57]Definition: Apt to flee away or flit; volatile; Source: “fugacious, adj.” OED Online. Oxford University Press, September 2014. Web. 1 November 2014.

[58] Elliff v. Texon Drilling Co., 146 Tex. 575, 581  (1948)( Capture rule simply is that the owner of a tract of land acquires title to the oil **562 or gas which he produces from wells on his land, though part of the oil or gas may have migrated from adjoining lands.).

[59] See e.g., Canada v. City of Shawnee, 1936 OK 803  (Okla. 1936)(“If the theory is that of ownership by capture, such as is usually applied in exploration for oil, it still is not at all necessary that we blindly follow such theory to such extremes [in a water context] as will lead to gross injustice.”).

[60] Young v. Ethyl Corp., 521 F.2d 771 (8th Cir. 1975).

[61] Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1, 9 (Tex. 2008).

[62]Michelle Conlin and Brian Grow, SpecialReport: U.S.builders hoard mineral rights under homes, Reuters, (October 9, 2013) available at:  http://www.reuters.com/article/2013/10/09/us-usa-fracking-rights-specialreport-idUSBRE9980AZ20131009

[63] Bahrle v. Exxon Corp., 652 A.2d 178, 192 (N.J. App. Div. 1995) aff’d, 145 N.J. 144 (1996)(“Res ipsa loquitur permits an inference of negligence from plaintiff’s proofs where (1) the occurrence itself ordinarily bespeaks negligence; (2) the instrumentality causing the injury was within the defendant’s exclusive control; and (3) there is no indication in the circumstances that the injury was the result of plaintiff’s own voluntary act or negligence.”).

[64] Ivory v. Int’l Bus. Machines Corp., 964 N.Y.S.2d 59 (Sup. Ct. 2012) aff’d, 116 A.D.3d 121, (App. Div. 2014) leave to appeal denied, 23 N.Y.3d 903 (2014)(“The court finds that the element of exclusive control, be it of the chemicals or property, need not require plaintiffs to “eliminate every alternative explanation for the event[….]”  Rather, plaintiffs are only required to “[d]emonstrate that the likelihood of causes other than [defedant’s] negligence is so reduced that the greater probability lies at [defendant’s] door, rendering it more likely than not that the injury was caused by defendant’s negligence.”); Tucker v. Sw. Energy Co., 2012 WL 528253, at *2 (E.D. Ark. Feb. 17, 2012) (“Missing are particular facts about particular [f]racking operations by particular fracking companies using particular substances that allegedly caused the Berrys’ air problems and the Tuckers’ water problems. General statements about the many dangerous substances used in fracking, and conclusory statements about the migration of those substances, will not suffice.”).

[65] Tucker v. Sw. Energy Co., 2012 WL 528253, at *2 (E.D. Ark. Feb. 17, 2012)(“As they stand, the complaints … are mostly a matter of “after this, therefore because of this”—bad things happened after the fracking, and therefore because of the fracking. But this fallacy is not sound as a matter of logic or law.”).

[66] Duke University, New tracers can identify frack fluids in the environment, Science Daily, (October 20, 2014) Available at:  http://www.sciencedaily.com/releases/2014/10/141020090320.htm

[67] See e.g., FPL Farming Ltd. v. Envtl. Processing Sys., L.C., 383 S.W.3d 274, 282 (Tex. App. 2012), review granted (Nov. 22, 2013).

[68] 4 Toxic Torts Litigation Guide § 44:5 (“Contamination of underground water from spills could result in personal injuries to human beings who ingest it, devaluation and damage of property, death to wildlife and destruction of ecosystems.”).
[69] See, Sebastian Doggart, Frack and ruin: the rise of hydraulic fracking, The Telegraph, (May 6, 2011)  available at:  http://www.telegraph.co.uk/finance/personalfinance/offshorefinance/8488166/Frack-and-ruin-the-rise-of-hydraulic-fracturing.html; See also, Jamie Smith Hopkins, High Levels of Dangerous Chemicals Found in Air Near Oil and Gas Sites, National Geographic, (October 30, 2014) available at:
http://news.nationalgeographic.com/energy/2014/10/141030-dangerous-chemicals-in-air-near-oil-and-gas-sites-study/.

[70] Slye v. Guerdrum, 29 App. D.C. 550, 552, 1907 WL 19759 (D.C. Cir. 1907)(“ It is, of course, axiomatic that at common law the gist of the action of trespass quare clausum fregit is injury to the possession.”).

[71] See e.g., Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d 1 (Tex. 2008).

[72] Restatement (Second) of Torts § 158 (1965)(“One is subject to liability to another for trespass, irrespective of whether he thereby causes harm to any legally protected interest of the other, if he intentionallyenters land in the possession of the other, or causes a thing or a third person to do so.”(emphasis added)).

[73] See e.g., Williams v. Amoco Prod. Co., 241 Kan. 102, 110 (1987).

[74] Ettus v. Orkin Exterminating Co., 233 Kan. 555, 561-62 (1983)(citing Foster v. Humburg, 180 Kan. 64 (1956)(“One who commits a tortious act is liable for the injury and loss that are the natural and probable result of his wrongful act.”)).

[75] Starrh & Starrh Cotton Growers v. Aera Energy LLC, 153 Cal. App. 4th 583, 604 (2007)(“WatsonLand Co. v. Shell Oil Co. 130 Cal.App.4th 69(2005)] observed that the history of the “statute demonstrates that the Legislature intended to eliminate financial incentives for trespass by eradicating the benefit associated with the wrongful use of another’s land.”).

[76] See Abrams v. Ciba Specialty Chemicals Corp., 663 F. Supp. 2d 1243, 1256 (S.D. Ala. 2009)(holding that defendant was still liable for cleanup costs where DDT levels sprayed on plaintiffs’ land were below levels that threatened human health.).

[77] Hendricks v. Allied Waste Transp., Inc., 2012 COA 88, 282 P.3d 520, 524, 2012 WL 1881004 (Colo. App. 2012)

[78] 4 Toxic Torts Litigation Guide § 44:19.

[79] Id.

[80] John Craven, Fracking Secrets: The Limitations of Trade Secret Protection in Hydraulic Fracturing, 16 Vand. J. Ent. & Tech. L. 395, 402 (2014)(“However, the secrecy exercised to protect [drilling companies’] proprietary mixtures has fed increased speculation and suspicion about what the fluids contain.”)(internal citations omitted).

[81] See e.g., Strudley v. Antero Res. Corp., 2013 WL 3427901 (Colo. App. July 3, 2013) cert. granted, 2014 WL 1357327 (Colo. Apr. 7, 2014).

[82] No. cc-11-01650, verdict returned (Tex. District Court, Dallas County Apr. 22, 2014).

[83] See e.g., Flores v. State, 2013 WL 2257439, at *1 (Tex. App. May 9, 2013).

[84] Coastal Oil & Gas Corp. v. Garza Energy Trust, 268 S.W.3d , 461 (Tex. 2008)(J. Willett, concurring)(“ The Legislature has made it the policy of this state to encourage secondary recovery of minerals,…”).

[85] Estate of Desir ex rel. Estiverne v. Vertus, 214 N.J. 303, 327 (N.J. 2013).

[86] Steigman v. Outrigger Enterprises, Inc., 126 Haw. 133, 141 (Haw. 2011).

[87] U.S. Const. Amend V.