Democracy & Technology Blog GPS surveillance – Who should decide?

The New York Times has an interesting piece by Charlie Savage about the use of GPS tracking by police departments.
It notes that last week, an ideologically diverse panel on the United States Court of Appeals for the District of Columbia overturned a drug trafficking conviction because the evidence against the defendant included tracking data from a GPS receiver that the police hid under his sport utility vehicle without a warrant. “The device essentially recorded his whereabouts 24 hours a day for four weeks.”
The real issue is not whether the police should be able to use this fantastic technology to catch bad guys. Of course they should.
The issue is whether police should be able to hide these devices without a warrant.
If police don’t have to obtain a warrant supported by probable cause, they could secretly affix these devices to everyone’s car. But if they have to obtain a warrant, they would have to show that they have a reasonable basis for suspecting that the target committed an actual crime.
That’s what the Fourth Amendment is all about. It allows surveillance of criminal suspects, but not innocent parties.
This is America, the Land of the Free. In America, you are supposed to be innocent until proven guilty. You don’t have to prove your guilt (see the Fifth Amendment), that’s the prosecutor’s job.
Innocence is usually its own shield, but not always.
What we really have here is police departments struggling to do their job with declining resources. Obtaining warrants is time-consuming and costly. If the police don’t have to convince judges to issue warrants, politicians can transfer resources elsewhere. It’s really a non-monetary tax on the innocent. It’s a tax on freedom.
That’s a very bad thing.
Fourth Amendment protection is warranted, if for no other reason, because this technology is novel and most people would not suspect that driving their car would expose their intimate activities to the police.
What if the police are allowed to deploy this technology according to their discretion? What if they deploy it widely and their files are lost or stolen, to God knows who else?
We don’t want to go down this path. The answer is to give police departments the resources they need and not to cut corners with our Constitutional liberties.

Hance Haney

Director and Senior Fellow of the Technology & Democracy Project
Hance Haney served as Director and Senior Fellow of the Technology & Democracy Project at the Discovery Institute, in Washington, D.C. Haney spent ten years as an aide to former Senator Bob Packwood (OR), and advised him in his capacity as chairman of the Senate Communications Subcommittee during the deliberations leading to the Telecommunications Act of 1996. He subsequently held various positions with the United States Telecom Association and Qwest Communications. He earned a B.A. in history from Willamette University and a J.D. from Lewis and Clark Law School in Portland, Oregon.