GPS on the run?

The Supreme Court earlier this month heard arguments on a relatively common drug case, but there is a chance for this case to set the groundwork, for good or ill, on resolving most of the issues I discussed recently regarding the murky state of privacy protections from the government in the United States.

The particular case argued was the U.S. vs. Antoine Jones, who had been convicted of conspiracy to distribute cocaine in part on the strength of evidence collected by a GPS tracker that had been installed on his car. The police obtained a warrant to install the tracker, but had not done so within the timeframe specified by the warrant. And although the government argued that people should not expect privacy when driving on a public street, so tracking by GPS should not even require a warrant, a lower court tossed the conviction saying that 24x7 GPS tracking went too far. The current case is a result of the government appealing that decision.

Do you give up a reasonable expectation of privacy by carrying a cell phone?

In its argument in front of the Supreme Court, the government basically said that there should be no expectation of privacy on the part of someone wandering around in public and that the use of GPS tracking was only an implementation detail. The court had previously ruled that police tracking of people in public by following them was OK without a warrant. But it was clear from the argument transcript that many of the justices thought that the automation of tracking enabled by the use of a GPS tracker was more than a minor difference.

Justice Alito got to the core of the issue when he noted "it seems to me the heart of the problem that's presented by this case and will be presented by other cases involving new technology is that in the pre-computer, pre-Internet age much of the privacy -- I would say most of the privacy -- that people enjoyed was not the result of legal protections or constitutional protections; it was the result simply of the difficulty of traveling around and gathering up information. But with computers, it's now so simple to amass an enormous amount of information about people ..." 

Justice Sotomayor noted that the logical conclusion of the government's position is that every person could be monitored and tracked through their cell phones without the trackers having to get warrants.

It seems to make little difference who is in charge of the government -- the official government position is that it may do everything it can when it comes to tracking activities and opinions of citizens. This government has argued at various times that it should have full access on a whim to cell phone location data, to stored email, to IP addresses of ISP users and, in this case, the ability to use GPS trackers on whoever it wants. The government maintains that it can be trusted to do the right thing and not invade the citizen's rights, but we have a few millennia of experience that counters that assertion.

If the court decides that an unlimited ability to monitor the activities of you and me is going too far, it could form the basis for an understanding of how to approach the many other situations where the technical ability to watch has far outstripped the legal protection against being watched. Kiss your privacy goodbye if the court agrees with the government.

Disclaimer: Lots of people at Harvard have opinions on when it is OK to be watched, and I am one of them. But I do not know of any official university opinion, even if there is one. This column is not it.

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