Supreme Court nixes warretless tracking

The argument was that since police could follow someone, and that because of that nobody had a right to an expectation of privacy as to their whereabouts in public, it was ergo fair game to surreptitiously place tracking devices on anyone’s car they wanted to monitor. It was just a matter of good use of resources. Why devote police officers to trail suspects, when technology could do the same thing cheaper and more efficiently! It was “reasonable” and police could use it at their discretion without judicial oversight.

This article in WSJ gives the “not so fast” from the Supreme Court in a unanimous ruling, that was split 5-4 along lines of reasoning. The majority opinion, authored by Antonin Scalia (backed by CJ Roberts together with Kennedy, Thomas, and Sotomayor agreed that the 4th amendments protection of “person’s, houses, papers, and effects, against unreasonable searches and seizures” would logically extend to private property such as automobiles and the use of GPS trackers constituted a “search” – since the governments case was based on the claim that it was not, the Government case was forfeit, and a conviction based on such a “search” was thrown out. They said that was enough reasoning to suit them. Interestingly, Justice Alito, supported by Justices Breyer, Kagan and Ginsberg, added to this in a concurring opinion. They felt that a property-based argument alone was too narrow to guard against threats to personal privacy from other modern technology.

Given the increasing use of things like cell phone data extractors and Wi-Fi collectors, the more liberal justices seemed to want to serve notice that they will not look kindly on arguments (which they are likely to see) equating the Information highway to real highways in this regard, with similar arguments as to the expectation of privacy. The “expectation of privacy” protects the person, while unreasonable search protects property. Both are to be protected. The Alito argument serves notice too those preparing possible challenges to warrantless police snooping on Wi-Fi or data collection from cell phones and standoff thermal imaging of interiors of residences better have better arguments than that citizens have “no expectation of privacy” over things that are snoopable, thus giving government free rein to do such snooping at its pleasure.


About Paul Vebber

"If you read about something, you have learned about it. If you can teach something, you have mastered it. Designing a useful game about something however, requires developing a deep understanding of how it relates to other things."

Posted on January 23, 2012, in Tech Policy. Bookmark the permalink. Leave a comment.

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