-Submitted by David Drumm (Nal), Guest Blogger
The case is United States v. Jones which concerns FBI agents who planted a GPS tracking device on Jones’ car and monitored the car’s position every ten seconds for an entire month, without a warrant. A jury found Jones, and co-defendant Maynard, guilty of a single count of conspiracy to distribute and to possess with intent to distribute five or more kilograms of cocaine and 50 or more grams of cocaine base.
Jones appealed to the United States Court of Appeals for the District of Columbia arguing that the district court erred in admitting evidence gained via the warrantless use of the GPS tracking device. The Appeals Court reversed Jones’ conviction, and the government’s petition for an en banc hearing was denied.
In a similar case, United States v. Knotts, a less sophisticated tracking device, a “beeper,” was installed in a container of chloroform to be used in the manufacture of illicit drugs and was used by police to track the route of the container. The Supreme Court, in a unanimous decision, held that:
A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.
In a footnote, the Court did not pass on the issue of the warrantless installation of the beeper in the chloroform container.
However, the DC Appeals Court found that Knotts was not controlling, noting that in the Knotts decision, the Supreme Court distinguished the “limited use which the government made of the [beeper] signals”. The Appeals Court further stated:
Most important for the present case, the Court specifically reserved the question whether a warrant would be required in a case involving twenty-four hour surveillance, stating
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.
In granting certiorari for United States v. Jones, the Supreme Court directed the parties to brief and argue the following question:
Whether the government violated respondent’s Fourth Amendment rights by installing the GPS tracking device on his vehicle without a valid warrant and without his consent.
The installation of the tracking device is an area not covered by Knotts decision, and could suggest that some Justices are concerned over this issue. The installation process may constitute a seizure, however brief. The installation could also violate the Fourth Amendment by interfering with the defendant’s private property.
Bob Esq,
Thanks for that info … careful and thorough usually wins the day!
why would the police need to install a gps device when they can just track you through on-star or similar devices.
Frank, while that was an interesting read, I would add the right to be left alone also gets trampled by outrageous decisions made under the banner of the commerce clause.
I know very little about the law, what do you believe Brandeis’ position on that would be?
Thanks, Frank, for the good read.
Supreme Court Justice Louis Brandeis said it best. When asked about which constitutional protection did he value as the most important he said “…THE RIGHT TO BE LEFT ALONE.”
See this article below written in 2000:
Business Week Magazine
The Right to be Left Alone
By John M. Eger, San Diego Union-Tribune, Insight, August 6, 2000.
As we rush headlong into a new but uncertain age, it is becoming increasingly clear that in our zeal to promote the marvels of the Internet, we may be seriously eroding the fundamental rights of the average citizen and consumer. Freedoms that Americans have so long cherished and expected are being undermined everyday not only by both internet entrepreneurs and global corporations, but sadly by our own government.
At stake is much more than merely occasional abuses of our more traditional concept of privacy, i.e. the right to protect confidential personal information from disclosure. Rather our more fundamental, constitutional “right to be left alone,”– the right to pursue life, liberty and happiness without unwarranted scrutiny, physical or electronic invasion, is being assaulted by the proliferation of surreptitious data gathering on the Internet.
The concept of the right to be left alone dates back to a 1928 Supreme Court wiretapping decision called Olmstead vs. the United States in which the Supreme Court Justice Brandeis said “the protection guaranteed by the amendments (of the Constitution) is much broader in scope. The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings and of his intellect . . . They sought to protect Americans in their beliefs, their thoughts, their emotions, and their sensations. They conferred as against the government the right to be left alone — the most comprehensive of rights and the right most valued by civilized men.”
While the Brandeis opinion and subsequent decisions established the framework for preventing government abuses of individual privacy, it is not government that poses the most serious threat today. Rather it is business — large and small — and the unfettered free enterprise system of global e-commerce.
As Justice Brandeis predicted, “.ways may someday be developed by which the government without removing papers from secret drawers can reproduce them in court and by which it will be enabled to expose to a jury the most intimate occurrences of the home. Advances in the psychic and related sciences may bring means of exploring unexpressed beliefs, thoughts and emotions.”
Today, given the pervasive influence of the Internet, unscrupulous agents either of government or commerce, can tell where your mouse sits on your desktop, what sites you visit and for how long and can track your movement from one web site to another. As more and more of our daily activities for work, for play, and everyday living involve the use of this new network of networks, every aspect of our lives is suddenly open to surveillance and the misappropriation and misuse of personal information, including our habits and by extension our inner most thoughts.
Author Jeffrey Rosen, in his book “The Unwanted Gaze: The Destruction of Privacy in America”, parodies Arthur C. Clarke’s famous computer character HAL, and offers a seemingly amusing, yet truly disturbing glimpse of how we might be visible to these internet voyeurs:
“Good morning Dave. Up rather late last night with me, weren’t you? Nasty girls.com, hum. Relaxing? Perhaps it is none of my business (ha, ha, ha) . . . speaking of business Dave, I noticed you cashed out of Intel yesterday. It wouldn’t be because of all of that credit card debt you and the wife have run up lately, would it? . . . Anyway, have a good day at the office, Dave. I look forward to more of those emails about – how did you put it? – that “boss I would like to strangle with a coat hanger. . .
Several years ago, during the United States Senate hearings on the nomination of Robert Bork to be a member of the Supreme Court an investigator opposing the Bork nomination managed to secure Blockbuster’s records of the movies Judge Bork watched. Opponents also got access to his reading habits and began to draw certain conclusions about Judge Bork’s mental processes. How wrong it would be to make a judgement about an individual’s qualifications to be Supreme Court Justice based upon his or her personal reading or viewing tastes. How many of us would wish to be subjected to similar scrutiny? Not surprisingly, Judge Bork was not confirmed.
This abusive scavenging for information , occurred of course, before the widespread use of the Internet and the World Wide Web. This kind of information and much more is becoming increasingly available to commercial enterprises in their relentless search for markets, and to governments to satisfy their thirst for personal information, all at the risk of undermining our fundamental rights.
Recently, the Federal Trade Commission (FTC) expressed its concern by opening an investigation into the marketing practices of a company called DoubleClick. DoubleClick is one of several hot new Internet firms specializing in helping e-commerce companies determine who has been visiting their sites. DoubleClick is a specialist in the “cookie” business. In computer parlance a “cookie” represents a line of computer code that is placed on the files of hard drives of every Internet user visiting a particular site. Once placed, the cookies follow the user every time he or she visits the site, and other sites. Most users accept cookies believing they are annoying but harmless and not in any way linked to their personal identities.
However, when DoubleClick recently bought another firm called “Abacus Direct,” a database that compiles the names, addresses, and buying habits of millions of individuals, the fear was that the viewing and buying habits of consumers would be combined, thus linking individual names and addresses with all their on-line and off-line purchasing and viewing behaviors. Suddenly, internet users lost their anonymity.
Just last month, the White House Office of National Drug Control Policy conceded that it may have violated federal privacy guidelines by using the DoubleClick devices to monitor traffic on its Internet sites for children and parents. The White House office which operates two anti-drug web sites, one for children and another for parents, is spending over $130 million to advertise anti-drug use, with $12 million designated to direct users to internet sites. But when users click on to reach the Drug Control office, cookies are installed. The Office also made deals with search engines so that computer users who searched the internet using key words and phrases like “pot” or “weed,” would automatically receive anti-drug advertisements on their computer screens and be invited to the Drug Control web sites.
However well intentioned, this example is but one in a long history of abuses by government to track citizens’ behaviors. In a very thoughtful 1970s book called “The Rise of the Computer State,” author David Burnham, former DC bureau chief for the New York Times, observed that “the computer files of the IRS, the Census Bureau, the Social Security Administration, the various security agencies such as the FBI and our own insurance companies, know everything there is to know about our economic, social and marital status, even down to our past illnesses and the state of our health. If, or is it when,” he asks, “these computers are permitted to talk to one another, when they are interlinked they can spew out a roomful of data on each of us that will leave us naked before whoever gains access to the information.”
Government’s interest in data — in information of all kinds — is well known. Now it is business — large and small – that is foraging for vital demographic data to ensure its survival in a new global and fractured marketplace.
With the advent of cable TV, the VCR, computer games, and hundreds of thousands of internet sites to attract the consumer , it has become a nightmare for advertisers to find and aggregate the people they need to reach efficiently with their advertising message. Obviously the more a company knows about you, the better it can tailor and target its advertising message. For example, if you seem to be getting an unusual number of electronic ads from weight loss firms, maybe you visited food.com once too often or just ordered a subscription to “Cooking Light.” If you visit an “adult” talk or chat room, you may find yourself inundated with invitations to visit any number of more salacious porn sites.
But this is only the tip of the iceberg. We have no legislation today to deal with the proliferation of health care or medical information, or credit or financial information available on the web. There are no standards of fair practice for use of the information collected. Consumers have no right to know who is collecting personal information about them, nor what information is collected or how it is being used.
While a handful of legislators have expressed concern, the majority of Congress, administration officials and industry spokesmen have suggested only technical solutions. And it is true there are some ingenious software programs coming downstream. Companies like Zero Knowledge Systems in Montreal have software which allows you to disguise yourself on the web. Some software will block all the cookies from being placed on your hard drive or erase the ones you have — but you will of course be locked out from going back to the site again. Other companies like Disappearing Ink use encryption technology to make it extremely difficult for anyone to retrieve your email after it has been deleted. Most people, by the way, still think when they hit the delete key, it’s gone. Not so in the world of cyberspace as even Bill Gates discovered when confronted with some of his e-mail during the course of the Microsoft antitrust proceeding.
But technology alone is not the solution. Jeffrey Rosen believes “the battle for privacy must be fought on many fronts — legal, political and technological — and each new assault must be vigilantly resisted as it occurs.” He is optimistic that Americans, who have a history of rising to the occasion when they are outraged, will demand governmental action.
But others are less sanguine. Privacy, they argue, is dead. Too many Americans have already compromised their personal rights for a free six-pack of Coke or a membership in a frequent-buyer program. Most are not even aware they are so vulnerable. Thus it is very unclear what support there is for national privacy legislation. While the Clinton Administration made it clear to the FTC that their call for a privacy bill of rights was premature, and Vice President Gore once called for an electronic bill of rights, neither he nor Bush have taken strong positions during this campaign to make privacy an issue of national public importance.
Most of the developed countries in the world — after having experienced public controversy over the treatment of personal information and personal information systems — have now developed legislation and policy and a response mechanism. So-called Data Protection Boards or Privacy Protection Commissions have been established to act as independent privacy ombudsmen defending individuals and investigating the workings of personal data systems maintained by government agencies or commercial firms. “It seems strange,” David Flaherty, author of “Protecting Privacy in Surveillance Societies” put it, “that some countries have independent agencies to protect privacy. In America you have to protect your own. ”
America need not rush out to create a new bureaucracy to mimic Europe’s approach to solving the privacy dilemma, but Americans deserve much more respect from the institutions, both public and private, that serve them. At the least, the President-this one or the next– must create A National Privacy Protection Study Commission as both Nixon and Ford did to get to the heart of the commercially driven privacy issues and make their recommendations to the President and the Congress. Only at the national level in a publicly appointed body will we get at the truth of our concerns and forge solutions under the watchful eye of the body politic and the press.
Secondly we should insist that at minimum, the Federal Trade Commission’s recommendations outlined in their report to Congress be embraced and the commission be directed to set the standards in the four areas they called for: notification about the use of personal data; consumers choices about the use of such information; the right of individuals to review data about themselves; and security measures to prevent unauthorized disclosure.
It would be ironic and sad if the same constitution which created a free press and a free enterprise system enabling the robust knowledge economy we now admire, was somehow responsible for the massive loss of personal privacy we are witnessing and with it a demise of more fundamental freedoms of our democratic society.
Eger, a telecommunications lawyer and Lionel Van Deerlin Professor of Communications and Public Policy at San Diego State University, was telecommunications advisor to Presidents Richard Nixon and Gerald Ford.
GPS, ShmeePS….
“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”
All issues of warrantless tracking by GPS except for the bad legal decisions will be moot in a few years when governments place enough automatic license plate recognition devices around town.
http://en.wikipedia.org/wiki/Automatic_number_plate_recognition
Minority Report, here we come.
Frank M.,
Great quote from Gandhi. And so true today.
Nal,
Great story and a very important one. If the Supremes allow this kind of warrantless intrusion, why do we even have a 4th Amendment?
The Fourth Amendment to the United States constitution has been under attack and slowly chipped away for several decades by decisions of the Supreme Court:
“AMENDMENT IV ( the first ten amendments [Bill of Rights] were ratified effective December 15, 1791)
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, SUPPORTING BY OATH OR AFFIRMATION, AND PARTICULARLY DESCRIBING THE PLACE TO BE SEARCHED, AND THE PERSONS OR THINGS TO BE SEIZED.”
All citizens should be alarmed at the growth of power that has been given to law enforcement vs. the private citizen and then sanctioned by the courts! Our freedoms are being diluted and taken away and not enough citizens care or protest this invasion. Thank God for the work of criminal defense attorneys, private and public, state and federal defenders, in the country and the few politicans who work to challenge the flow of this invasion!
” Bad things happen when good people don’t speak out.” Mohandas. Gandhi.
Anon nurse, yep, “This is the truth about our America.” and thanks for the link, it’s a fascinating story.
http://thepoliticalcarnival.net/2011/07/02/cartoons-of-the-day-supreme-court/
anon nurse:
Hope the light is becoming a little brighter for you.
The following doesn’t come as a surprise. It’s so much worse than many realize, as I’ve said ad nauseum on this blog… As culheath wrote, “Police state.”
FOIA responses often tell the real story but, in many cases, by the time they do, it’s too late for those who have been harassed to the point of no return. Homicides, suicides, and worse… All in the name of “national security”… And those who dare to tell the truth are… simply “delusional.” This is the way it works.
Op-Ed Contributor
Hemingway, Hounded by the Feds
By A. E. HOTCHNER
Published: July 1, 2011
http://www.nytimes.com/2011/07/02/opinion/02hotchner.html?pagewanted=1&src=recg
Excerpt:
“What does a man care about? Staying healthy. Working good. Eating and drinking with his friends. Enjoying himself in bed. I haven’t any of them. You understand, goddamn it? None of them.” Then he turned on me. I was just like the others, pumping him for information and selling him out to the feds. After that day, I never saw him again.
This man, who had stood his ground against charging water buffaloes, who had flown missions over Germany, who had refused to accept the prevailing style of writing but, enduring rejection and poverty, had insisted on writing in his own unique way, this man, my deepest friend, was afraid — afraid that the F.B.I. was after him, that his body was disintegrating, that his friends had turned on him, that living was no longer an option.
Decades later, in response to a Freedom of Information petition, the F.B.I. released its Hemingway file. It revealed that beginning in the 1940s J. Edgar Hoover had placed Ernest under surveillance because he was suspicious of Ernest’s activities in Cuba. Over the following years, agents filed reports on him and tapped his phones. The surveillance continued all through his confinement at St. Mary’s Hospital. It is likely that the phone outside his room was tapped after all.
In the years since, I have tried to reconcile Ernest’s fear of the F.B.I., which I regretfully misjudged, with the reality of the F.B.I. file. I now believe he truly sensed the surveillance, and that it substantially contributed to his anguish and his suicide.
I was in Rome the day he died.
I did not go to Ketchum for the funeral. Instead I went to Santa Maria Sopra Minerva, one of his favorite churches, and said goodbye to him there. I recalled a favorite dictum of his: man can be destroyed, but not defeated. (end of excerpt)
====================
This is the truth about our America: Good people are “run to ground.” Good people are being destroyed by the harassment, surveillance, thefts, vandalism, mail-tampering, defamation, and more. And it can happen to anyone.
This is the truth about our America.
Police state.
Chris: “… The other problem is that data mining just isn’t that effective as a crime fighting tool (or intelligence tool).”
—–
Your observation is correct if the aim is to actually fight crime. If ones aim is to have a chilling effect, then having people think they are being monitored all the time, or might be, even if they don’t have behaviours that would give rise to a warrant, could be very effective to curtail many kinds of behaviour.
The Highest Court of New York State Protects Privacy from GPS Monitoring
By SHERRY F. COLB
Wednesday, June 24, 2009
Last month, in People v. Weaver, the New York Court of Appeals, the highest court of New York State, held that before attaching a GPS device to a suspect’s car and continuously monitoring the car’s whereabouts for 65 days, the police should have obtained a search warrant.
In so holding, the court relied exclusively on the New York State Constitution’s analogue to the U.S. Constitution’s Fourth Amendment right against unreasonable searches and seizures. The court thereby insulated its decision from reversal by the U.S. Supreme Court (because a state’s highest court has the final word on the construction of state law).
In reaching the result that it did, the New York court indirectly raised important questions about the U.S. Supreme Court’s interpretation of the federal right to be secure against unjustified intrusions by the police. And while this case will not reach the U.S. Supreme Court, its careful approach could prove influential for federal courts considering the parallel Fourth Amendment question.
http://writ.news.findlaw.com/colb/20090624.html
The SCOTUS has not been too friendly on questions of privacy of late. That the DC Court of Appeals decision was not simply allowed to stand and the writ of certiorari denied does not give me a good feeling here.
My concern is that this fundamentally changes the relationship of citizens and government. If you have enough suspicion of a specific offense to invest the resources to follow me around in person, fine. If you have enough to convince a judge who’s exercising proper oversight and not just rubberstamping warrants, fine.
But if you don’t need a warrant to put it on one car then you don’t need it to put it on every car and just look for suspicious activity in the past. Sure, this might solve a few crimes but it also opens the door for abusive violation of Right to Peaceful Assembly. Remember in the 50s (iirc) the NAACP went all the way to the Supreme Court to keep its membership roles private. Now imagine if the local cops could have just put GPS devices on every suspected member and see where they congregate.
The other problem is that data mining just isn’t that effective as a crime fighting tool (or intelligence tool). It’s great for collecting evidence after you have an identified suspect but blanket searches (‘find every car that went through this intersection over a two hour period’) tends to produce so many false hits that you waste far more resources clearing POI than you do investigating the rare good leads.
“A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements.”
So to get privacy,must we travel on private property ?
Good stuff, Nal.
So much information to be gained…why wait for a warrant anyways…