Privacy cases slated for U.S. Supreme Court's new term
By: Declan McCullagh
When police in the District of Columbia decided to use an automobile GPS bug to surreptitiously track the movements of Antoine Jones, a suspected cocaine dealer, they set in motion a legal challenge that will end before the U.S. Supreme Court.
The court's fall term, which begins today, includes a review of Jones' attempt to overturn his conviction. His attorneys argue that such precise turn-by-turn tracking requires a search warrant signed by a judge--a step that D.C. police chose not to take.
Would police have required a warrant to tail the suspect? I realize that technology can change things in very fundamental ways, but if the principle in question is turn-by-turn tracking then such a ruling could threaten the legality of 'warrantless tailing.' (That said, as an individual I am concerned that the the relative ease, low expense, and scalability of using such devices could make widespread tracking of people for no apparent reason viable.)
I'm concerned that tracking movements of a vehicle can give a misleading picture of the driver /and/ of those he comes into contact with. While a particular person /might/ be doing something unlawful, that does not mean that every stop (s)he makes is in pursuit (pun intended) of illegal ends.
Consider a newsdealer: if the police have a record of a suspect's car stopping at his stand every day, they might presume that he is also a drug dealer, or a money launderer, or a messenger, etc. He doesn't deserve that just because he's available to do business. The same things applies to a hamburger stand, a street person panhandling at a traffic light, and even to a cleric at a church: all are in a position to facilitate illegal activities, but are unlikely to do so, and their choice of a livelihood which brings them into daily contact with both saints /and/ sinners shouldn't cast suspicion on their good name.
The U.S. Constitution contains a specific prohibition against quartering troops in private homes: it was a tactic the British government used to keep track of the populace in the years leading up to the revolutionary war. I think that provision is there in order to prevent the government from trying to turn mundane gossip or ordinary people "blowing off steam" into the appearance of criminal acts. So too, their whereabouts: I don't want the government to know where I am, because it's not the government's business to know.
I have been saying for some years now that the last vestige of privacy in America is that citizens are not required to divulge the names of their friends, and that information is rapidly accumulating in commercial databases that are available to anyone with the price of access. Although most of the data gathering activity currently being conducted is being done with the consent of those who use things like instant messenger or facepage, there is too fine a line between "the government" and "firms the government has influence over" for me to be comfortable with any lessening of the privacy rights I enjoy.
Bill, who encrypts all his emails to keep the FBI from finding out how boring his life is.
I suspect that the distinction is that LE actually attached a device to his vehicle.
If I recall correctly, there's a strong precedent in case law that a person doesn't have an "expectation of privacy" from simply being observed, when they are in public. "Warrantless tailing" gains its legitimacy from this, in part... you aren't "searching" a person by watching them drive or walk around in a public space.
Actually placing a transmitter (or a recording GPS tracker) on a vehicle crosses a line, in the opinion of many people, in that it does invade a person's private "space" to some extent.
Yes, that's a significant part of the concern. Here in the U.S. the courts have recognized that certain forms of surveillance or monitoring can have a "chilling effect" on Constitutionally-protected rights (e.g. of expression or association). E.g. "If the police can track me without a warrant, then I don't think I'll go to that talk about political corruption in the city government... no telling who the police might tell and then I'd end up having zoning problems."