The question we confront today is what limits there are upon this power of technology to shrink the realm of guaranteed privacy.
-- Kyllo v. U.S.
Democracy Now! today discussed a 9th Cir. case that upheld the power of government agents to go on to your property, under your car, and install a GPS device that would allow them to track your movements 24/7. That is, without a warrant, though the legitimacy of such tracking even with one would be an interesting matter in various instances too. Is it really that hard to obtain a warrant when the plan is to keep track of someone's movements to such a degree? Again, even with one, tracking someone for civil reasons or whatnot might be troubling in certain instances.
As discussed here, the legitimacy of GPS use by the government has been a repeated issue for the lower courts, which has divided on the issue. The matter has been discussed here as well, I suggesting that "reasonable" should be taken to mean use of some common sense judgement. A GPS device is not like a beeper; the Supreme Court in such a case in the early 1980s noted (citations omitted):
Respondent does not actually quarrel with this analysis, though he expresses the generalized view that the result of the holding sought by the Government would be that "twenty-four hour surveillance of any citizen of this country will be possible, without judicial knowledge or supervision." But the fact is that the "reality hardly suggests abuse," if such dragnet-type law enforcement practices as respondent envisions should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable. Insofar as respondent's complaint appears to be simply that scientific devices such as the beeper enabled the police to be more effective in detecting crime, it simply has no constitutional foundation. We have never equated police efficiency with unconstitutionality, and we decline to do so now.
We are at this point. The case at issue in the broadcast suggests what it is at stake, though worse cases might be imagined:
Juan Pineda-Moreno was a suspected marijuana dealer. The police strolled up to his car — which may have been in his driveway or on the street — and attached a tracking device, data from which proved instrumental in prosecuting him. Pineda-Moreno appealed his conviction, alleging that his Fourth Amendment rights were violated because the po-po entered “the curtilage of his home” to place the devices.
Judge Kozinksi, the court jester of the libertarian wing over there, was outraged:
I don’t think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle’s every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we’re living in Oceania.
He was in dissent, but recall that Scalia wrote Kyollo. Kozinski, who would probably make a great justice (I wouldn't like some of his rulings, but would take him over Roberts or Alito -- hey, he did the chief judge thing, right?) also noted that if the defendant was rich, he could avoid this sort of thing with gates and such. K. noted that diversity is promoted in the judiciary, but truly poor people don't become judges. Some were poor once though; like his childhood memories, that can matter.
Kozinski's expression of a "reasonable expectation of privacy" has one more notable aspect. He deals with one of the legal fictions of Fourth Amendment law: the fact we leave open our lives to third parties in limited ways (such as bank records) means we have no reasonable expectation of privacy over them from government surveillance. So, a government can obtain a collection of phone numbers you called, since it is available from the phone company. Any limitation here on Fourth Amendment grounds is basically merely statutory. This is absurd.
The majority here noted that children can go where the government agents did to place the GPS device. As the dissent noted:
The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people’s curtilage."Reasonable" should not just be some complex term of art that allows us to ignore such realities because of some logical syllogism to "to shrink the realm of guaranteed privacy" to a degree to not make it worthy of its name. And, since reasonable expectations of privacy does not fall into any exact formula, determining the contours is partially up to us. Kyollo* falls both ways in that respect -- if something is "in general public use," privacy diminishes. If we accept a loss of privacy, the Supreme Court will likely not save us from ourselves.
For good or ill, this matter will likely be decided upon by the Supreme Court in the next few years.
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* Kyollo involves a special locale of privacy, the home, as does this case (at least, its outer perimeters). Scalia has shown some concern for the privacy of automobiles.
Scalia's majority opinion also speaks of the intimate nature of the home, which has been used to secure a general right to privacy over activities inside the home, even when a search warrant or otherwise legitimate invasion is present. He surely does not think that follows, but so be it. Poe v. Ullman (Harlan, dissenting) still holds true.
Nor does his reference to "common law" understandings lead him (as compared to many of us) to accept that the common law develops over time, past the original understandings of the provision. Or, at least, not to the extent of some (cf. his plurality here with O'Connor's concurrence). If the Framers accepted that "common law" is relevant here, this development would seem to be part of the package.