By John W. Whitehead
“The privacy and dignity of our citizens [are] being whittled away by sometimes imperceptible steps. Taken individually, each step may be of little consequence. But when viewed as a whole, there begins to emerge a society quite unlike any we have seen—a society in which government may intrude into the secret regions of a [person's] life.”—Justice William O. Douglas
Technology, having outstripped our ability as humans to control it, has become our Frankenstein’s monster. Delighted with technology’s conveniences, its ability to make our lives easier by performing an endless array of tasks faster and more efficiently, we have given it free rein in our lives, with little thought to the legal or moral ramifications of allowing surveillance technology, especially, to uncover nearly every intimate detail of our lives.
Consider how enthusiastically we welcomed Global Positioning System (GPS) devices, which use orbiting satellites to produce accurate and continuous records of their position and of any person or object carrying the devices, into our lives. We’ve installed this satellite-based technology in everything from our phones to our cars to our pets. Yet by ensuring that we never get lost, never lose our loved ones and never lose our wireless signals, we have also made it possible for the government to never lose sight of us, as well.
Indeed, as a case before the U.S. Supreme Court makes clear, the government is taking full advantage of this technology to keep tabs on American citizens, and in the process, is not only violating the Fourth Amendment’s prohibition against unreasonable searches and seizures but is putting an end, once and for all, to any expectation of privacy in public places. Thus, what is at stake in United States v. Jones, a case in which police attached a GPS device to a suspect’s vehicle and tracked his movements for over a month without a warrant, is nothing less than the continued vitality of the Fourth Amendment in the modern technological age in which we live.
In September 2005, police placed a GPS device on the undercarriage of Antoine Jones’ Jeep while it was parked in a public lot in Maryland. They did so, despite the fact that their original warrant had expired and restricted them to tracking Jones’ movements in the District of Columbia. Jones, the co-owner of a nightclub in Washington, DC, was suspected of being part of a cocaine-selling operation. Every day—24 hours a day, seven days a week—for four weeks, the police used the GPS device to track Jones’ movements and actions. Based upon the detailed information they were able to obtain about Jones’ movements—including a trip to a Maryland stash house in which police reportedly found cocaine, crack and $850,000 in cash—on October 24, 2005, police arrested and charged Jones with conspiring to distribute drugs.
Because the search warrant was invalid (having expired and been used outside the Washington, DC city limits), Jones’ attorneys asked the trial court to suppress the evidence uncovered, insisting that the police had acted in violation of the Fourth Amendment’s protection against unreasonable searches and seizures. The trial court refused, and Jones was convicted and sentenced to life in prison.
On appeal to the DC Court of Appeals, the government defended its actions, arguing that because the evidence uncovered as a result of the GPS device involved Jones’ movements while he was on public streets, no violation of his privacy had taken place. The appeals court disagreed, ruling that use of the GPS device to track Jones 24 hours a day for four weeks constituted a search in violation of the Fourth Amendment.
Writing for the three-judge panel, Judge Douglas H. Ginsburg declared:
We hold 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 not just remote, it is essentially nil. It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine… A reasonable person does not expect anyone to monitor and retain a record of every time he drives his car, including his origin, route, destination, and each place he stops and how long he stays there; rather, he expects each of those movements to remain disconnected and anonymous.
Ginsburg rightly recognized the dangers of such a vast, uninhibited use of GPS technology: “A person who knows all of another’s travel can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”
Asked to rehear the case, the full nine-judge panel of the US Court of Appeals for the DC Circuit concurred with the three-judge panel’s ruling and overturned Jones’ conviction. In doing so, the court created a split among the federal courts, namely the Ninth and Seventh Circuits, regarding the warrantless use of tracking devices by police.
Insisting that GPS devices have become a common tool in crime fighting and that a person traveling on public roads has “no reasonable expectation of privacy” in his movements, the Obama Administration’s Department of Justice appealed US v. Jones to the U.S. Supreme Court, which will hear arguments in the case on November 8. The case has generated heated debate regarding where to draw the line when it comes to the collision of privacy, technology, constitutional rights and government surveillance. The arguments on both sides are far-ranging, with law enforcement agencies on one side defending warrantless searches and civil liberties advocates on the other, insisting that if police can stick a GPS on a car, why not on a piece of clothing or everyone’s license plate? Among those asking the court to rule against the government’s unwarranted use of GPS devices is 90-year-old Roger L. Easton, the principal inventor of the GPS technology.
A study conducted by Roger Clarke, the famed Australian specialist in data surveillance and privacy, indicates that the costs resulting from the erosion of personal privacy are so significant that they essentially threaten the very foundation of a democratic society. Some of the most serious harms include: a prevailing climate of suspicion and adversarial relationships; inequitable application of the law; stultification of originality; weakening of society’s moral fiber and cohesion; repressive potential for a totalitarian government; blacklisting; ex-ante discrimination and guilt prediction and inversion of the onus of proof.
The most troubling characteristic of warrantless searches, however, is the extent to which they are capable of serving as the backbone for a totalitarian state. The frightening effects of warrantless surveillance are somewhat blunted insofar as those entrusted with such awesome powers exercise them responsibly; however, establishing secretive, unchecked mechanisms of state monitoring is essentially an invitation to abuse. As every student of American history should be taught, our governmental system of checks and balances was premised on the awareness that trust in the restraint of those in power is not sufficient to protect liberty. Structural restraints and oversights are imperative. If warrantless use of GPS tracking is allowed, an essential structural protection of liberty—judicial oversight—is lost and the privacy of all citizens is threatened.
Moreover, as The Rutherford Institute pointed out in its brief to the Court, among the most significant detrimental effects of covert, warrantless government surveillance is the chilling effect it has on free speech and association and the harm such deprivations of First Amendment rights has on democratic institutions. Indeed, when citizens—especially those espousing unpopular viewpoints—are aware that the intimate details of their personal lives may be pervasively monitored by government, they are less likely to freely express their dissident views.
Obviously, the new era of technology, one that was completely unimaginable to the men who drafted the Constitution and the Bill of Rights, requires an updated legal code to enshrine the right to privacy. The courts, first of all, must interpret the Fourth Amendment protection against unreasonable search and seizure as a check against GPS technology as well as future technologies which threaten privacy. Second, Congress should enact a technological Bill of Rights to protect us from the long arm of the surveillance state.
Recently, Senators Ron Wyden and Mark Udall, who serve on the Senate Select Committee on Intelligence, suggested that there exists a secret program of spying on American citizens. Concerned about the ability of government agents to track American citizens, specifically with GPS technology, the Senators sent a letter to the Director of National Intelligence James Clapper, asking him if government agents are tracking Americans’ movements, and if they are, what authority they have to do so. As Wyden noted, “the law is being secretly interpreted by the executive branch.”
Unfortunately, the letter was disregarded by the Obama administration. Kathleen Turner, aide to Director Clapper, refused to answer whether the executive branch believes it has the authority to collect geo-location data or disclose the extent of any such tracking. Matthew Olson, leader of the National Counterterrorism Center, gave a slightly less obfuscatory answer to the Senate Select Committee on Intelligence saying, “There are certain circumstances where that authority [to track geo-location data in cell phones] may exist.”
Senators Wyden and Chaffetz are undeterred, however, and have introduced another bill that would require police to obtain a warrant and prove probable cause before tracking someone via GPS. Senators Franken and Blumenthal have also sponsored legislation to “require companies to get a user’s consent before sharing cell phone location information.”
New technologies which enable the radical expansion of police surveillance operations require correspondingly robust legal frameworks in order to maintain the scope of freedom from authoritarian oversight envisioned by the Framers. What the Supreme Court—or Congress—needs to do is establish a clear rule requiring warrants for GPS monitoring. This would provide needed guidance to law enforcement agencies, quell litigation, protect civil liberties including cherished First Amendment rights, and ensure the viability of the Fourth Amendment even at the dawn of a new age of surveillance technology.
A sea change is coming, but the final outcome is still uncertain. Unless we as citizens educate ourselves and others right now, we face the prospect of unprecedented government surveillance and corporate knowledge of personal information, culminating in the death of the Fourth Amendment and the right to privacy.
Constitutional attorney and author John W. Whitehead is founder and president of The Rutherford Institute. His new book The Freedom Wars (TRI Press) is available online at www.amazon.com. He can be contacted at email@example.com. Information about The Rutherford Institute is available at www.rutherford.org