Futurists have been predicting for years that there will be diminished privacy in the future, and we will just have to adapt. In 1999, for example, Sun Mcrosystems CEO Scott McNealy posited that we have “zero privacy.” Now, Wall Street Journal columnist Gordon Crovitz is suggesting that technology has the “power to rewrite constitutional protections.” He is referring to GPS tracking devices, of all things.
The Supreme Court is considering whether it was unreasonable for police to hide a GPS tracing device on a vehicle belonging to a suspected drug dealer. The Bill of Rights protects each of us against unreasonable searches and seizures. According to the Fourth Amendment,
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
In the case before the Supreme Court, U.S. v. Antoine Jones, the requirement to obtain a warrant was not problematic. In fact, the police established probable cause to suspect Jones of a crime and obtained a warrant. The problem is, the police violated the terms of the warrant, which had expired and which was never valid in the jurisdiction where the tracking occurred. Therefore, first and foremost, this is a case about police misconduct.
If police are free to ignore the express terms of a warrant issued by a judge, then the police are essentially free to do whatever they think is necessary to get their job done. We are all human, subject occasionally to passionate and greedy impulses, and no one in a position of authority should be free to do exactly as they please.
Sometimes the requirement to obtain a warrant may be problematic. For example, Judge Richard A. Posner, among others, has argued that the warrant requirement makes it too difficult for police to prevent terrorism.
The administration is right to point out that [Foreign Intelligence Surveillance Act], enacted in 1978 — long before the danger of global terrorism was recognized and electronic surveillance was transformed by the digital revolution — is dangerously obsolete. It retains value as a framework for monitoring the communications of known terrorists, but it is hopeless as a framework for detecting terrorists. It requires that surveillance be conducted pursuant to warrants based on probable cause to believe that the target of surveillance is a terrorist, when the desperate need is to find out who is a terrorist.
No one can make a compelling argument why the Fourth Amendment imposed an undue burden on police in the case of Antoine Jones. Naturally, it is understandable that police, prosecutors and some over-zealous law-and-order types would want to take full advantage of new technologies for keeping up with the bad guys. Some techno-futurists, such as Crovitz, who understand that privacy in the digital world will be different than what we became accustomed to in the analog world, are insufficiently sensitive to the dangers posed by unfettered investigative and prosecutorial discretion in the hands of government agents.
Crovitz offers the quaint example of cameras to remind us that at one time, way back when, it was considered an invasion of privacy to take a photo of someone else in a public setting without their permission. “What was unreasonable before may be reasonable now,” he concludes. What Crovitz overlooks is that it may take decades for the public’s reasonable privacy expectations to change, as it certainly did with respect to photography in public spaces. Should judges be guided by the privacy expectations we have today, or should they try to predict how privacy expectations will evolve so they can impose new norms? Isn’t the latter a dangerous form of judicial activism?
The real problem here, as Justice Stephen G. Breyer warns, is that if the government wins the Jones case, “then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” The police have always had the right to tail a suspect, and they can still do that. They have never had sufficient resources to potentially surveil the entire population.
No one is suggesting that the police should not be free to take advantage of the opportunities that new technologies offer. The requirement to obtain a warrant hardly prevents them from doing that. But it does force the police to focus on the people who are reasonably suspected of committing particular crimes, and not on the rest of us. The Fourth Amendment protects us from harassment and intimidation just because we express, or are even suspected of holding, unfavorable views about the people in power. Protecting the Fourth Amendment is vital for protecting our liberty.
Since there is no reason why police cannot obtain a warrant before they hide a GPS tracking device on a suspected criminal’s vehicle, there is no novel conflict with the Fourth Amendment. Jones, therefore would seem to present a fairly straightforward question between whether we want to live in a police state or not.
GPS tracking devices have no intrinsic “power to rewrite constitutional protections.” We do not have to relinquish our fundamental liberties so long as we remain vigilant patriots determined to keep them.