Category Archives: 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.