Published on Intrepid Report, by John W. Whitehead, January 25, 2012.
In a unanimous 9–0 ruling in United States v. Jones, the U.S. Supreme Court has declared that police must get a search warrant before using GPS technology to track criminal suspects. But what does this ruling, hailed as a victory by privacy advocates, really mean for the future of privacy and the Fourth Amendment?
While the court rightly recognized that the government’s physical attachment of a GPS device to Antoine Jones’ vehicle for the purpose of tracking Jones’ movements constitutes a search under the Fourth Amendment, a careful reading of the court’s opinion, written by Justice Antonin Scalia, shows that the battle over our privacy rights is far from over.
Given that the operable word throughout the ruling is “physical,” the ruling does not go far enough. The court should have clearly delineated the boundaries of permissible surveillance within the context of rapidly evolving technologies and reestablishing the vitality of the Fourth Amendment. Instead, the justices relied on an “18th-century guarantee against un-reasonable searches, which we believe must provide at a minimum the degree of protection it afforded when it was adopted.”
As Justice Samuel Alito recognizes in his concurring judgment, physical intrusion is now unnecessary to many forms of invasive surveillance. The government’s arsenal of surveillance technologies now includes a multitude of devices which enable it to comprehensively monitor an individual’s private life without necessarily introducing the type of physical intrusion into his person or property covered by the ruling. Thus, by failing to address the privacy ramifications of these new technologies, the court has done little to curb the government’s ceaseless, suspicionless surveillance of innocent Americans.
In the spirit of the court’s ruling in US v. Jones, the following surveillance technologies, now available to law enforcement, would not require government officials to engage in a physical trespass of one’s property in order to engage in a search: … //
… As this list shows, the current state of technology enables government agents to monitor unsuspecting citizens in virtually any situation. One of the hallmarks of citizenship in a free society is the expectation that one’s personal affairs and physical person are inviolable so long as one conforms his or her conduct to the law. Otherwise, we are all suspects in a police state. Any meaningful conception of liberty encompasses freedom from constant and covert government surveillance – whether or not that intrusion is physical or tangible and whether it occurs in public or private. Thus, unchecked technological surveillance is objectionable simply because government has no legitimate authority to covertly monitor the totality of a citizen’s daily activities. The root of the problem is not that government is doing something inherently harmful, but rather that government is doing something it has no lawful basis to be doing.
Unfortunately, by failing to establish a Fourth Amendment framework that includes protection against pervasive electronic spying methods that are physically unintrusive and monitor a person’s activities in public, the court has ensured that the core values within the Fourth Amendment will continue to be fundamentally undermined. 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.
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, as Justice Alito recognized, “the best solution to privacy concerns may be legislative. A legislative body is well situated to gauge changing public attitudes, to draw detailed lines, and to balance privacy and public safety in a comprehensive way.” I would take that one step further and propose that Congress enact a technological Bill of Rights to protect us from the long arm of the surveillance state. 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. (full text).