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Comment by tedunangst | Hacker News Reader

That is basically it. Aereo is not doing any one thing you could not do yourself, but the conglomeration is a little gray.

As an admittedly poor analogy, the police can follow you around without a warrant. They can't, however, slap a GPS tracker on everybody's car and follow ten million people around simultaneously. The law is interpreted by people, and they consider things like scale, scope, automation, intent, etc.

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That's a very interesting detail (sorry taking discussion a bit off track), but as UAV technology compresses and shifts to commodity scale, Police could potentially have a robot "follow" you around without warrant. It would seem that the original intent of the provision limiting surveillance gets circumvented.

The principal that prevents the police from attaching GPS devices to your car has less to do with the scope of surveillance and more to do with the fact that the police have to violate your personal property to accomplish it.

I think some expansion of this statement is in order. As far as settled SCOTUS cases go, the only reason why police need a warrant to attach a GPS to your car is because they must "sieze" the car (for however brief a time) in order to attach the device. As you alude to, it has nothing to do with the surveillance itself. However this is far from a settled issue. At least 4 out of the 9 SCOTUS justices support a new Fourth Amendment theory called the "mosaic theory", introduced by Alito in US v. Jones (2012). Under this theory, courts would evaluate the actions by government in aggregate to determine if the actions constituted a search. Under such a doctrine, 24 hour GPS surveillance on public roadways may well be illegal without a warrant. This theory has been criticized by some academics as too difficult of an analysis for the courts to handle. Yet it does show that the justices are indeed considering the scope of surveillance and some of them are trying to figure out a way to limit the scope using Fourth Amendment analysis. Alito in particular seems worried about it and he has found support for at least some of his ideas from Ginsburg, Breyer, Kagan, and Sotomayor

Makes you wonder if the court would have upheld the police GPS tracking if the guy had just been parked on the street instead of his driveway the night they bugged his car.

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