Category Archives: Privacy

GPS, Privacy, and the Government, Revisited

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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.

GPS Tracking, Privacy, and the Government

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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 4th Amendment rights? Is even the mere use of such a device a violation of the suspect’s 4th 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.

Thoughts on Privacy

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An individual’s right to privacy, that is to be confident that the things he wishes not to be exposed to the public will be kept to himself, is an inherent right of his existence, which acknowledgement is well rooted in our Constitution via the Bill of Rights’ 3rd Amendment barring the use of our homes by the government’s soldiers without our permission, the 4th Amendment’s more explicit acknowledgment of our right to “be secure in [our] persons, houses, papers, and effects” against the government’s prying eyes, the 5th Amendment’s self-incrimination bar, and the 9th Amendment’s acknowledgment that any right not explicitly assigned to the government remains in our hands.  Those roots are well fertilized by various Supreme Court decisions, including Griswold, Eisenstadt, Loving, and Roe.

Yet there is a growing move to reduce or eliminate that expectation, based on the increasing capability of technology to penetrate that privacy and on our increasing use of social media, and those technologies, to abrogate that expectation.  Indeed, questions are asked whether our individual privacy comes at too great a cost, or whether we have too much privacy.

People who want to meet us are only a click away via this or that social media.  It’s easy to join this or that group—even a useful group, such as a breast cancer survivor group—and that group wants us to join.  Therefore we’re obligated to do so?  Suppose we don’t want to meet that person?  Suppose we only want to interact with the group through private means and not publicly?  Or not at all?

I cannot think how the cost of privacy is too great given the costs from losing that privacy.  The question of too much privacy often is grounded in the premise that technology makes it easy to “share” our information, and that today such information has great value.  But the question elides certain critical additional questions that must not be ignored.

The ease of sharing as justification for forcing that sharing is on its face disingenuous.  As well insist that, since I can pick a locked file cabinet’s lock with a paperclip, I’m entitled (entitled!) to know the contents of the files in that cabinet.  Since I can open a door to my neighbor’s house, I’m entitled to enter it without that neighbor’s permission.

As to that value, the questions offered don’t address to whom that value applies.  That someone wants very badly, and so that information has great value to him, in no way justifies a requirement on my part to give him that information.  My information has value to me, also, and a lot of that value is bound up in the private nature of that information.  But I’ll pay a pretty penny, he says.  No, say I.  I decline to share my information.  Why not, he presses.  But this question is a non sequitur.  Indeed, to paraphrase Sir Thomas More, I will not say, and I will not say why I will not say.

I have no obligation to justify why I wish to maintain my privacy.  Indeed, that justification is part of my privacy.  But what am I hiding, some might ask.  My privacy, I answer.  And nothing more.

Why is privacy so important?  Honoring another’s privacy is to respect that other.  We don’t need to know every inner datum about another just to satisfy our own curiosity.  Further, privacy is critical to our liberties.  If we cannot be private in our affairs we cannot protect ourselves from an overreaching government.  We cannot prepare ourselves to respond to a government that goes too far, even with the best of intentions.  We cannot be free in our speech, for instance, if we cannot be private in our preparation of it, if we cannot make our decisions concerning what we will say publicly.  Aside from that, we have a property right in our privacy.  Any decision concerning the disposition of our privacy, or any part of it, is ours and ours alone.

If we cannot control our own privacy, we have no privacy.

We have transferred to government all the rights concerning our privacy it needs via those 3rd, 4th, and 5th Amendments, wherein we allow the government to penetrate our privacy under certain narrowly circumscribed conditions, with suitable government certifications to a court that the penetration is necessary.  No more control need be transferred to government or to our fellows.  No more private information need be transferred to government or to our fellows.

The technologies for penetrating our privacy can be valuable tools—get the appropriate court order or warrant and use the very latest technology to pierce the veil of privacy of a suspected terrorist.  The social media’s ability to make sharing our information with our friends and acquaintances, and potentially interesting strangers, is enormously valuable in its ability to facilitate the spread of useful information.  But that information must be voluntarily given.  It belongs to an individual until that individual decides for himself to publicize it.