GPS Tracking, Privacy, and the Government

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.

America’s Future—Foreign Policy Principles, Part I

In the next few posts on America’s future, I’ll explore what our foreign policy should entail if we’re to have a successful future as a nation.  In order to identify that policy, though, it’s necessary to understand our purpose, and what our principles are, in the conduct of our foreign policy.  Accordingly, in this post and the next, I’ll talk about our necessary foreign policy principles.  In a later post, I’ll discuss what a foreign policy structure might be that would make our efforts more efficient and more effective in satisfying these principles.  Note that this will not be a restructuring of our Department of State, but of the principles that State should satisfy.

The purpose of our government is to protect our individual, inalienable rights; the purpose of our foreign policy must be to support that on the global stage.  Thus, our primary foreign policy principles must be those things that, if satisfied, serve that purpose and thereby enhance our government’s ability to satisfy its domestic purpose.  These foreign policy principles, then, will be those things that address foreign impediments to our government’s purpose while those impediments are small and overseas, and so neutralize them before they become problems for us at home.

What are these principles that are the extra-domestic support of our government’s purpose?  The overriding principle must be a focus on doing what is in our own national interest and not simply what will enhance our popularity.  (I don’t set aside popularity altogether; that can be narrowly useful in short-term situations, but it can only be useful in this fashion.)  Within this there are three principles that give substance to our national interest: protection of American citizens while they are abroad, assured access to the resources we need for our economy, and support for our friends and our allies.  (Notice that these also have military implications; I’ll address the military aspects of these goals in a post on our necessary future military policy.)

There are a number of reasons, both practical and moral, why our own national interest must come ahead of all else in our foreign policy.  The practical reasons include these.  As noted above, the purpose of our government is to protect our inalienable rights—this is why we formed our social compact those 200 and more years ago.  Wealthy as we are, we have only finite resources, and we must see first to our own welfare with those resources before we can see to any others’ welfare.

Secondly, we must operate our foreign policy from an “enlightened selfishness” perspective.  If we are not as strong as we might be, if our citizens are not as safe as they need to be, if our economy does not have access to the resources we need, then our ability to support our friends and allies, even our ability simply to help other nations, other peoples, will be impaired, perhaps to the point we are unable to provide any support at all.  The depth of another nation’s need has no impact on our capacity to help satisfy that need.

Finally, related to this, is the fact that we simply cannot afford to help others if the damage to ourselves from the assistance is greater than the gains from providing that aid.  An extreme example of this comes from WWII.  Our materiel aid to the Soviet Union and to Great Britain sorely tried our industrial output and our ability to equip our own military forces, both in preparation for the coming fight, and in its prosecution.  Yet helping these two, one an ally and one a friend, were critical to the combined effort of destroying NAZI Germany in Europe.  On the other hand, providing monetary assistance to a bankrupt nation that shows no capacity for learning the lessons of its bankruptcy, and doing so in a time of our own economic crisis, will harm us far more than it will aid that nation—and so we must not provide that assistance.

There are moral reasons for seeing to our own national interest first.  One is that it is our duty, as it is the first duty of all nations, to satisfy our own interests first so as to not become a burden on other nations by shifting the necessity of satisfying our needs onto them.

Secondly, this helps prevent our hand up aid from being transformed into a handout, thereby shifting the receiving nation into dependency on us rather than leaving them responsible and capable in their own right.   As German Chancellor Angela Merkel noted a year ago as the present Greek crisis was becoming fully developed, the other EU member states would not make as much of an effort (in helping Greece or themselves), nor would Greece make as much of an effort on its own behalf, if Germany proved too generous.  Making other nations dependent on us does not support their moral health or ours.

The failure from losing this moral aspect is illustrated by these examples.  Fifty years of dependence on the American military umbrella left Europe completely unable to deal with the mayhem in the Balkan states that followed President Josip Broz Tito’s death and Yugoslavia’s subsequent dissolution.  We had to apply American airpower so that the scant European troops could have the protection they needed in order to impose a semblance of peace on the region.  The situation had gotten little better 20 years later in Europe’s attempt to support the rebels in Libya.  After less than two months of a low key air “campaign,” the European air forces began dropping American ordnance—they’d run out of their own.  And we had to supply almost all of the air surveillance, command and control, and air refueling assets: the Europe nations, still dependent on us, had too little of their own military assets.

In a later post I’ll talk about the foreign policy principle of supporting our friends and allies.  This principle not only is important in its own right, it also facilitates the remaining two principles.  For that reason, I’ll spend that later post on this principle, and I’ll talk about the remaining two principles after that.