Today, the Supreme Court began hearing a case, United States v Jones, concerning among other things, whether the police need a warrant to plant a GPS tracker on a suspect’s car: is doing so without a warrant a violation of the suspect’s 4^th Amendment rights? Is even the mere use of such a device a violation of the suspect’s 4^th Amendment rights?

The government makes the following arguments, among others:

the device “did not meaningfully interfere” with Jones’s property rights, because it didn’t affect the Jeep’s gas mileage, drivability or other characteristics.

and

using technology to enhance surveillance, without a warrant, was condoned in the 1983 case United States v. Knotts, a case in which police hid a beeper in a vehicle to track a suspect.

These arguments seem deficient to me.  With regard to the first, it’s disingenuous. A telephone wiretap placed on a person’s telephone system doesn’t “meaningfully interfere” with a person’s property rights, because it doesn’t affect the telephone’s clarity of speech communication, dialability or other characteristics, either, yet a warrant is required.

On the other hand, requiring a warrant to place a GPS tracker on a person’s car won’t meaningfully interfere with the government’s investigation any more than the warrant does in placing a tap on a person’s telephone.

The second argument is equally disingenuous; it’s just a Brandeis-ian excuse to perpetuate judicial error and the ensuing injustice.  Further, the argument is nothing more than a cynical red herring.  The government knew, in Jones, that a warrant would be necessary for this sort of surveillance; they had, in fact, gotten one.  They’d just let it expire before they acted on it, and then the GPS tracker was planted outside the warrant’s jurisdiction: in a Maryland parking lot, rather than in DC, where the warrant had been issued.

The Court, on the other hand, asks these questions.

How does technology change traditional law enforcement?

and

Could [police] get the same information from 30 deputies [devoted to surveillance]?  What you’re saying is police have to use the most inefficient methods.

and

…how are peoples’ privacy expectations [changing] as technology changes….  Technology is changing people’s expectation of privacy.

The answer to the first question is clear: it does not change it at all.  The Constitutional limits and authorities concerning police surveillance and investigation remain entirely intact.  All that changes is police’s capability to operate—still within those traditional limits and authorities.

As to the second question, no, we’re not.  We’re saying get a warrant for the activity, and then (properly) use the most efficient methods at your disposal.  The need for a warrant to do these things is both unchanged and technology agnostic.  Just execute it without the idle delays that led to the original warrant, in Jones, for instance, expiring before the surveillance was carried out.  As I noted above, getting the warrant only interferes with the police’s “methods” if the investigation isn’t…warranted…in the first place.

Additionally, the convenience of the government is not an excuse for abridging individual liberties.  The convenience of the government is limited by our Constitution to 17 enumerated powers, and nothing else.  Just to saucer and blow this, our Constitution also notes that the contents of that “nothing else” are explicitly reserved to the States and to the People.

As to the third question, it shows a misunderstanding of privacy.  Privacy remains the property and the business of the individual, independently of the technology available with which to penetrate that privacy.  Most especially, privacy is not something our government will choose to allow according to its convenience and magnanimity.  Indeed, the fact that there is an ongoing hue and cry over the abuses of our privacy by the various social media and the various cell phone software providers demonstrates that, even in today’s technologically-driven openness capability, we still demand our individual privacy be respected.