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Privacy rights battle just beginning

January 31, 2012


THE ISSUE: Ruling on GPS attachment

OUR VIEW: Technology forcing need for clarification on privacy rights

The U.S. Supreme Court rightly ruled n United States vs. Jones that secretly tracking people’s movements by attaching GPS devices to their cars violated the Fourth Amendment’s ban on unreasonable searches unless police first get a warrant from a judge.

While the justices came down firmly on the side of privacy in this case, the battle is just beginning to protect privacy rights in this age of technology when more eyes are watching us than ever before.

The court’s ruling validates the belief that people have a reasonable expectation that they will not be subject to constant monitoring by the government, and that escalating secretive technological surveillance violates a person’s reasonable expectation of privacy.

“We have entered a new and frightening age when advancing technology is erasing the Fourth Amendment,” says John W. Whitehead, president of The Rutherford Institute.

“Thankfully, in recognizing that the placement of a GPS device on Antoine Jones’s Jeep violated the Fourth Amendment’s protection against unreasonable search and seizure, the U.S. Supreme Court has sent a resounding message to government officials – especially law enforcement officials – that there are limits to their powers.”

Government lawyers argued that Jones had no expectation of privacy when he traveled on public roads and that, in any case, tracking his movements through the GPS was no different than surveillance of his comings and goings by police officers physically shadowing him. The only difference was the GPS accomplished the same task more efficiently, they argued.

Justice Antonin Scalia dismissed that claim on the grounds that installing the device on a private car constituted a “search” under the Fourth Amendment and therefore required police to obtain a warrant. Scalia based his reasoning on an obscure provision of 18th century tort law that seemed to limit the ruling’s application to devices “physically” attached to a subject’s vehicle. However, in concurring opinions, several of the justices suggested the requirement for a warrant may also apply to a much broader range of technologies.

And those technologies abound, points out The Rutherford Institute’s Whitehead. Here are just a few:

* Drones – pilotless, remote-controlled aircraft used extensively in Iraq, Afghanistan and Pakistan – are being used increasingly domestically by law enforcement. Some states are proposing to use drones to track citizens and closely monitor individuals based on the mere suspicions of law enforcement officers.

* Surveillance cameras – According to Whitehead, a member of the surveillance camera industry has said, “Pretty soon, security cameras will be like smoke detectors: They’ll be everywhere.” And Whitehead notes, “The cameras, installed on office buildings, banks, stores, and private establishments, open the door to suspicionless monitoring of innocent individuals that chill the exercise of First Amendment rights. For example, the New York Police Department has adopted the practice of videotaping individuals engaged in lawful public demonstrations. The government also uses traffic cameras as a form of visual surveillance to track individuals as they move about a city.”

* Smart dust devices – Tiny, wireless microelectromechanical sensors that can detect light and movement. These “motes” could eventually be as small as a grain of sand, but will still be capable of gathering massive amounts of data, running computations and communicating that information using two-way band radio between motes as far as 1,000 feet away. Whitehead points out that in the near future, law enforcement officials will be able to use these devices to maintain covert surveillance operations on unsuspecting citizens.

* Then there are RFIDs, Radio Frequency Identifications, that have the ability to contain or transmit information wirelessly using radio waves. And don’t forget cell phones that contain tracking chips which enable cellular providers to collect data on and identify the location of the user. On top of that, Google announced this week it will be gathering and storing more information than ever before on users of its products beginning in March, and the kicker is that Google users won’t be able to opt out of this “data mining” feature.

It all smacks of George Orwell’s “1984,” doesn’t it? There appears to be no end to how far surveillance technologies will be able to intrude into our private lives.

That’s why we believe congressional hearings are needed now on comprehensive legislation to deal with these issues. 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.”

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