I wrote here on the subject; today I’d like to revisit it. Gordon Crovitz wrote on the subject yesterday, and there are still some misconceptions that need to be addressed.
To recap, this question arises from the case of U.S. v. Antoine Jones that is currently before the US Supreme Court. In this case, a man, Antoine Jones, was suspected of involvement in the drug trade, and as part of an investigation of Jones, the police obtained a warrant to place a GPS tracker on Jones’ car. The proximate reason the case has come up is that the tracker wasn’t planted until after the warrant had expired, and when it was planted, it was done so outside the jurisdiction of the court that had issued the warrant.
The misconceptions, though, aren’t directly related to these facts; they center on the nature of individual privacy, the relationship between an individual and the government vis-à-vis that privacy, and the need for a warrant at all in this sort of case.
One misconception, surprisingly, is demonstrated by Justice Antonin Scalia, who is no slouch concerning the principle of limited government. During oral arguments for this case, the following exchange occurred:
MR. LECKAR [STEPHEN C., ESQ, representing Jones]: …because what you have here is society does not expect that the police, the human element would be taken out of — would be taken out of the surveillance factor.
JUSTICE ALITO: You know, I don’t know what society expects and I think it’s changing. Technology is changing people’s expectations of privacy.
Suppose we look forward 10 years, and maybe 10 years from now 90 percent of the population will be using social networking sites and they will have on average 500 friends and they will have allowed their friends to monitor their location 24 hours a day, 365 days a year, through the use of their cell phones. Then — what would the expectation of privacy be then?
Justice Alito’s question is valid if put into a proper context, but he does not do that. His question relates solely to a man’s personal business, his personal relationship with his neighbors and friends (in every sense of that term). Alito needs also to ask this question in an additional context: what is, and what would, the expectation of privacy be with respect to the government? This is a very different expectation. While technology may* reduce the degree of privacy expected in the man’s personal life, it is utterly irrelevant to his expectation with respect to his government. We still expect government snooping to be held under strict controls.
Justice Alito goes on:
You don’t even see it [the GPS tracker]. It’s just a little wafer, they put it under the car, it does nothing.
If the wafer does nothing, why have the police planted it? The fact is, this little wafer does quite a lot, and it does so by invading a man’s privacy.
Justice Anthony Kennedy also misunderstands the situation:
…it seems to me what you’re saying is that the police have to use the most inefficient methods.
Not at all, as I said in the earlier post (in fairness to Kennedy, Leckar misses this point, also). The police should use the most current technology, the most current training, available to them in the conduct of their investigations. As they recognized in the present case (but let expire before acting), they just need to get a warrant before they conduct a search and/or seizure. Perhaps with an app that gives them a Web presence with a judge, so less time is spent on getting the two together in the same room for the discussion and issuance.
Justice Sonia Sotomayor shows a different misconception, addressing Leckar’s response to a preceding Kennedy question about video surveillance.
What an unworkable rule tethered to no principle. A thousand video cameras may or may not be OK, depending on how large the city is?
You bet. Additionally, the principle is quite plain: every man has a reasonable expectation of, a right to be free from, the prying eyes of government, absent a legitimate reason for the prying—which legitimacy is demonstrated by convincing a judge to issue a warrant. Furthermore, each person, each case, is unique: we’re not cookie cutter products, or clones. Finally, the government’s convenience is never an excuse for abridging individual liberties.
In the end, however public a man’s life might be from the perspective of his neighbors and friends, it must remain private from the government’s perspective. Get the warrant. This is, by far, a lesser hardship on the government’s men than warrantless invasions of Americans’ individual liberties are on Americans.
*As I pointed out in that earlier post, the very great expectation of privacy still extant in our personal lives is demonstrated by the hue and cry extant over the various social media’s invasions of that privacy.