Amicus Brief: Thompson v. Wilson

Frank Thompson, a federally permitted Maine lobsterman, is challenging a state rule requiring lobster vessels to operate a government-approved GPS tracking device at all times when the vessel is in the water. The device transmits location data once per minute, enabling continuous, real-time monitoring of all vessel movements, including during personal use and non-commercial activity.

Thompson challenged the tracking as a violation of the Fourth Amendment's protection against unreasonable searches. The First Circuit dismissed the challenge because lobster fishing is a closely regulated industry and thus receives less Fourth Amendment protection. That is a longtime variation of Fourth Amendment law that subjects some industries to inspections without a warrant. It is not a limitless exception, however. 

Now on petition for Supreme Court review, the Manhattan Institute has filed a brief in support of Thompson. GPS trackers are both relatively new and also quite ubiquitous. That has created many new questions for courts on the scope of the Fourth Amendment protections from continuous surveillance. We argue that is a good reason for the Court to review the case. Some types of industries need closer monitoring, but current doctrine is a mess. It's unclear whether continuous electronic tracking of closely regulated industries, rather than intermittent inspection, fits into current Fourth Amendment jurisprudence. Thus, it is important for the Court to clarify and to be aware that even closely regulated businesses have privacy interests.  Many industries are highly regulated, including many ordinary licensed workers and small businesses, and while GPS tracking might make the government's job more "efficient," it could also be a backdoor to broader government surveillance. 

Ilya Shapiro is a senior fellow and director of Constitutional Studies at the Manhattan Institute. Follow him on Twitter here.

Trevor Burrus is a legal policy fellow at the Manhattan Institute.

With special thanks to associate Addison Gills