It is disappointing that the Obama administration, which campaigned against George W. Bush’s poor record on civil liberties protection, is pursuing a course that aims to limit Fourth Amendment rights when it comes to the use of location tracking technology.
The Washington Post reported yesterday that the Obama administration has petitioned the U.S. Supreme Court to overturn a ruling last year by the U.S. Court of Appeals for the D.C. Circuit that forces police to obtain a warrant before tracking the movements of a suspect using a global positioning device.
The motion is significant because various state laws conflict over procedure and the Supreme Court, if it takes the case, could establish long-term procedure going forward. In the case at hand, United States vs. Antoine Jones, the D.C. court sided with the defendant, overturning the conviction against Jones, who was accused of being a major cocaine dealer, ruling that D.C. police violated due process by using a GPS device to track Jones’ movements for one month without a warrant. Appellate courts in New York and California, on the other hand, have ruled in favor of police in similar cases.
The case also comes as location-tracking technology becomes more common. This itself is fueling an ongoing debate about the balance between utility and privacy. Witness last week's revelation that Apple iPhones and Google Android smartphones by default track their users’ locations, which are then transmitted back to the respective companies and stored.
A valid concern in all this is the question of how aggressively law enforcement will seek this access to this data now that it exists. The D.C., New York and California cases all involved direct use of tracking technology by law enforcement agencies—police affixed the GPS transmitters to suspect vehicles. These instances, as we see, already raise questions of due process. The next step will likely see police deputizing commercial companies to do the tracking work for them. This has happened post-9/11, with U.S. government agencies demanding that phone companies turn over calling records without a warrant. Moreover, as the law stands now, there's enough wiggle room for police and prosecutors to claim they don’t need them. Much of this search-and-seizure abuse can be corrected by specific legislation, such as extending safeguards of the Electronic Communications Privacy Act to include personal data stored by third-parties.
The other element in U.S v. Jones is “reasonable expectation of privacy.” True, one does not have such expectation on the public streets, but, as Justice Douglas Ginsberg, in a reasoned application of the concept, wrote in his decision (as per the Post), “the whole of a person’s movements over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements...is essentially nil.”
This provides a real-world response to Chief Judge David Sentelle’s dissenting argument. “A person’s reasonable expectation of privacy while traveling on public highways is zero,” Sentelle wrote, and “the sum of an infinite number of zero-value parts is also zero.”
But there’s a whiff of sophistry here, recalling for me Zeno’s Paradox of the Achilles and the Tortoise. The ancient Greek philosopher, perhaps wryly, asserted that because, mathematically speaking, an infinite number of points lay between points A and B (i.e., wherever you are, you’ll always have halfway to go), a traveler setting out from point A, in theory at least, would never reach Point B. Because we live in a finite world, we know Zeno’s Paradox does not hold.
Likewise, while we may not expect privacy when we drive down to the local grocery store--at any point along the way we may seen by a neighbor out walking the dog--we have a reasonable expectation of protection from round-the-clock observation. Sentelle’s point is undone by the fact that if observation is constant, aggressive and/or obnoxious enough, courts consider it to be harassment. That’s why we have restraining orders.
Politics being what they are, the Obama administration picked as unsavory a defendant it could find to set up as a test case—no one wants to go out on a limb to speak for the rights of a drug kingpin. But it would do us good remember the principle, not the man. With personal information being recorded, stored and processed as much as it is, the correct policy is to strengthen Fourth Amendment protections, not petition for their dilution.