The benefits of having an on-your-person radiolocation beacon are somewhat muted by the possibility of having the government use that same technology to undermine your Constitutionally protected privacy.
If there is anything that history can teach us, it's that law enforcement agencies will work hard to keep us from knowing that this is going on and they will fight to keep this tool because it makes it easier for them to do their job. Ask any cop and they will tell you that they often view our "rights" as a complete hinderance to their effectiveness.
One man's "civil rights and due process" is another man's "got off on a technicality."
What "Constitutionally protected privacy" would that be?
There's no enumerated right to privacy. There's a right to be free from "unreasonable" searches. But, if you actually read the key Supreme Court majority opinions establishing what "reasonable" means, you find that it concedes privacy in every case in which legitimate government interests are at stake.
So, a bit of a layman's guide to Constitutional Law:
The Constitution specifies that there are rights that are not enumerated in the Constitution (or the Bill of Rights) that are yours nonetheless. The SCOTUS has found that this includes "the right to privacy."
Generally speaking, if the SCOTUS says it's the law, you can consider their decision to be nearly equivalent to a general incorporation into the Consitution since all courts below it are essentially BOUND to follow that decision if it's relevant. If SCOTUS says it's illegal, it's illegal.
And I would disagree with your characterization of what "key Supreme Court majority opinions" say. The reasonableness test is one that gets bandied about quite a bit. You're going to have to cite specific cases if you're going to make that claim.
The syllabus of this opinion, which I cited upthread, says that the court didn't have to consider "reasonable expectation of privacy" (like I said, Scalia's majority opinion turns on the fact that you can't tamper with someone's person effects, including their car, and claim not to be encumbered by the 4th Amendment). The opinion goes on to repeatedly affirm that drivers on public roads do not have a reasonable expectation of privacy.
For the Constitutionality of searches without warrants in exigent circumstances or in situations where searches have limited scope and support a legitimate interest of the state, how about GM Leasing v United States.
Also, Katz is a case that comes up a lot in SCOTUS opinions about "reasonable" search (we have Katz to thank for the fact that wiretaps require warrants). From the majority opinion:
Finally, Griswold is the case everyone cites with regards to a specific right to privacy. But if you look at cases that follow it, like Lawrence v. Texas, we again see words like "legitimate state interest" (Ctr-F for it).
My point here isn't that there's no Constitutional protection of privacy. I'm just saying that there's no enumerated right to privacy, and implying that privacy protections under the Constitutions are lesser protections compared to freedom of speech and religion, or the freedom to bear arms. Of the possible freedoms a Constitution could explicitly grant, "privacy" seems like one of the least tenable, given how often privacy comes into tension with law enforcement.
Read the whole case and consider these salient points:
-The cops did in fact get a warrant to place a GPS device on the subjects car, but did so outside the terms of the warrant.
-The argument that the actual installation and tracking didn't constitute a search was rejected.
The point I'm trying to make is that there are lots of congruent mechanisms that make this information available to third parties that aren't necessarily going to be encumbered by the need to install a "tracking device" on a subject vehicle. Lots of information is already collected in the normal and proper operation of things like cellphones (for E911 -or- Facebook). There is VERY little case-law on this specific subject but I think my point (which we were originally arguing) that there is a "reasonable expectation of privacy" is enshrined in law.
The fact that you are driving a car on a public road isn't necessarily private, but I think it would be reasonable to suggest that the exact movements of a person over a period of a year (for example), to include who they might be co-located with in a specific property, or other pertinent meta-data DOES constitute something we would reasonably expect to be private.
To your other point:
"What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection."
There are MANY MANY instances where personal data is exported and stored without the knowledge of an individual that create all sorts of legal minefields for you. For example, I might be fully aware that my car is not invisible and can be seen by people on my street. I might be completely unaware that my cellphone is regularly broadcasting my location to Verizon or ATT even when I'm not using it.
There is a HUGE gap in public understanding of the practical effects of this technology use and the repercussions of that use. This "reasonable expectation of privacy" bit is going to collide with technology in a big big way IMHO.
Doesn't every criminal who is followed by a surreptitious police tail then get to claim the same reasonable expectation that nobody should have known about his specific transit from a drug corner to the stash house?
Everybody wants privacy in every situation. The whole point of there being a notion of a "reasonable expectation" to it is that a line has to be drawn somewhere. Without it, there'd be no law enforcement at all.
The whole point of getting a warrant is to justify to a competent legal authority (judge) that the specific right (reasonable expectation of privacy) is outweighed by the states interest (upholding the law). NOBODY here is claiming that this right is absolute.
More to the point: if the cops had simply done their job and obtained the warrant, executed it properly, and stayed within the confines of that warrant, there is no case for the SCOTUS to hear.
We're talking about the margins of warrant requirements and the expectation to privacy. Nobody's being disingenuous. The territory here simply isn't clear.
Again: the FBI lost this case because they physically tampered with someone else's effects. They did not lose because SCOTUS determined that people have a reasonable expectation of privacy in their public movements. Which is unsurprising, because SCOTUS has explicitly said people don't reasonably have that expectation.
So, no. Not being disingenuous. Again: under your reasoning, couldn't the drug dealer fall back on their reasonable expectation of not having someone tail them as they transited from the drug corner to the stash house? Because the police can obviously do that without a warrant.
And again, I go back to REASONABLE. Cops following the guy is fine. Reasonable.
But your argument falls apart if the cops can go to Verizon or AT&T and pull your cached GPS data without a warrant. I certainly feel like that would be an unreasonable search. I think most people would agree with me. I think that's where the law will ultimately take us too.
Is the line maybe at "real-time"? Maybe the concern is best expressed as, "we don't feel it's OK for the police to RETROACTIVELY pull information about our location history; perhaps it's not reasonable for us to feel private about standing on a street corner or driving down an interstate, but we certainly feel private about the totality of everywhere we've been for the past month".
Maybe we feel it's more reasonable for the police to tail us because they're collecting the information actively and in real-time.
Or maybe we feel like its reasonable because there is less chance that something we did in the past might be made illegal (and therefore prosecutable) in the future.
Here is where I tend to disagree with strict constructionists: the framers were particularly aware that future situations might call for adjustments to the Constitution. It was far more important to generally provide a set of principles that could be adopted by a society and then adjusted as their reality evolved.
There is no way that the Framers could have foreseen wall-penetrating radar systems or GPS-enabled cellphones. Our justice system had a hard enough time coming to grips with the telephone and what that meant for Fourth Amendment protections. Since the Right to Privacy isn't enumerated but rather implied by the other Rights, we are probably going to see more cases similar in context U.S. v. Jones where the technical capability to track someone exists that doesn't involve an actual trespass by law-enforcement.
Ok, I follow you. But if the thing that bites us about cell tower logs is the retroactive character of it, what about other technologies that make it easier for the police to surveil us? For instance, the police already have closed circuit camera networks for which they need no court order to monitor people on. In fact, they can even use them to research subjects retroactively.
What about image recognition on those cameras? It won't be long before they can just punch in a license plate number.
There are already problems along these lines. Here in CT there was a minor kerfuffle over the storage of license plate information (gathered by automatic number plate recognition systems on cruisers) long past the stated purpose of identifying stolen vehicles and expired registrations wanted individuals. This fact was actually concealed from the public until there was a full-court press to discover the truth. These kinds of legal questions are no longer theoretical; the feared actions are now happening as predicted.
How comfortable do you feel about the government compiling a dossier of your movements? Do you believe that there isn't some chance that this data will tempt someone to use it improperly?
It feels inevitable, given where technology is heading --- not only in terms of my personal effects emanating trace information about my location, but also just because monitoring and sensing networks are getting so much cheaper.
It also feels (word chosen carefully) like this capability is going to have more positive uses than negative ones. If I want to focus my energy on the law enforcement stuff that really matters, then perhaps I focus on whether we're criminalizing the right things (for instance: drug criminalization is a debacle), and whether we're appropriately constraining the ability of the police to detain and physically search us.
I don't believe that this kind of technology can't be limited in practice and in the law to protect us from the downsides while giving us most of the upside.
We were able to develop a framework to protect telephonic communication (against the wishes of law enforcement I might add) and I think something similar can be accomplished with electronic records compiled by service providers. If the government can pass a law making it illegal for me to sell lemonade without the appropriate permits, they sure as heck can pass a law restricting the sale or distribution of personal data.
I want my location to be made available (to others) to serve ME, but not propagated wantonly willy-nilly to the highest bidder. That's REALLY the major issue here; if these records are permitted to be generated for "legitimate business purposes permitted by law" then it's a free for all, since those records can be subpoenaed. But if we make certain classes of those records "personal identifiable data" then it's easy to erect a barrier to that information legally. The cops and marketers will complain to holy hell about it but I feel like it's a necessary step we as a society need to take to prevent total abuse by the powers-that-be.
>Doesn't every criminal who is followed by a surreptitious police tail then get to claim the same reasonable expectation that nobody should have known about his specific transit from a drug corner to the stash house?
I think that this sentence reveals everything about your position: you aren't thinking in terms of citizens but rather in terms of criminals. And this reveals binary thinking that, fundamentally, cops are the good guys and anyone they are interested in are bad guys, and cops can and should use any and all tools in their power to track down and stop those bad guys.
This is a deeply problematic view to a lot of people here and elsewhere. We have all seen video of the police murdering the homeless; we have all seen video of police brutalizing bystanders and stealing/destroying their recording equipment. And for every concrete video, there are hundreds, thousands of stories of police bullying, abusing, and otherwise misusing their power. We have all heard of photographers being needlessly hassled, and the various abuses, mistakes, and humiliations that the TSA visits upon Americans and America's visitors every day. And that's just here in the USA. I have personally witnessed several instances of petty abuses of police power, physically assaulted for "mouthing off" to an OC Sheriff (I had a camera and would not give it to him, and he grabbed it and the strap and threw me down), and have a friend who was traumatized as a boy by an officer of the law.
One of the biggest problems with how policing is done is that police look for anything "out of the ordinary", and then act to discourage it. If your look or lifestyle is out of the ordinary, you're a target. If you are doing something on your property that is out of the ordinary, you're a target.
Intrusive, scary, brutal, arbitrary, conformist. And these are the people you want to give even more authority and power and control to?
No thanks. We already have police driving around with heavy weaponry in their vehicles, while elsewhere in the world somehow the police make due with a nightstick. They already passively scan license plates for DMV paperwork violations. There is no need to give them more power, more information, or more control over me, my information, or my life.
What you've done here is instead of addressing my argument, invented a cartoon caricature of the arguer (your cartoon version of me favors heavily armed police who assault people for "mouthing off") to argue with instead.
Golly, I am sorry. I thought you might like to know that you have a pervasive bias that is distorting your understanding so badly that it would cause you to argue for police powers on an Orwellian magnitude. But, since I am not interested in rearranging the deck chairs of specific arguments on your moral and ethical Titanic, I'll leave you alone with your thoughts.
I doubt any officers think that it's wrong, but most are no doubt aware that this thing that is making their jobs easier is unpopular with the public and likely to be barred by courts when challenged. Best, then, to keep it as quiet as possible.
This, absolutely. The police have a dim view of virtually every restriction of their powers. And that makes sense. The police know well that in the overwhelming majority of the situations they work in, society wants and needs the police to intervene. They're spending all day locking up bona fide criminals, and, in urban areas, worrying about getting shot.
And all that means is that the police shouldn't be left to regulate themselves. And, they aren't.
Food for thought - all law enforcement operates above the law. They all intimidate, kidnap and assault and some of them even kill. A law enforcement officer who operates within the law wouldn't ever raise his fist.
They say that power corrupts yet we wonder why our security forces are corrupt. They say absolute power corrupts absolutely yet we wonder why the highest leadership commits atrocities. They say that anarchy is disorder but they've never looked in a dictionary. They say it's the best system we have yet we try no other. They say it's for our good yet they're the rich ones. I say it's no good, yet I'm the one who's crazy.
If there is anything that history can teach us, it's that law enforcement agencies will work hard to keep us from knowing that this is going on and they will fight to keep this tool because it makes it easier for them to do their job. Ask any cop and they will tell you that they often view our "rights" as a complete hinderance to their effectiveness.
One man's "civil rights and due process" is another man's "got off on a technicality."