In Western discourse, individual rights are often associated with political and economic freedom, whereas group rights are associated with social control. This is because in the West the establishment of individual rights is associated with equality before the law and protection from the state.Examples of this are the Magna Carta, in which the English King accepted that his will could be bound by the law and certain rights of the King’s subjects were explicitly protected.
By contrast, much of the recent political discourse on individual rights in the People’s Republic of China, particularly with respect to due process rights and rule of law, has focused on how protection of individual rights actually makes social control by the government more effective. For example, it has been argued that the people are less likely to violate the law if they believe that the legal system is likely to punish them if they actually violated the law and not punish them if they did not violate the law. By contrast, if the legal system is arbitrary then an individual has no incentive to actually follow the law.
This autumn the Supreme Court will consider whether or not the government can affix GPS devices onto the automobiles of criminal suspects without even obtaining a warrant.
A petition filed to the Supreme Court this week comes in wake of a reversal in the decision of United States v. Antoine Jones. In that ordeal, officers had installed a GPS device on Jones’ automobile while it was parked in a public lot outside of Washington DC — without ever obtaining a warrant. Authorities even tracked the car down days later and changed the battery in the device unbeknownst to Jones or the owner, his wife. The records obtained by monitoring his movement helped lead officers to nearly 100 kilograms of cocaine which, yielded a conviction of life in prison for the DC nightclub owner. Until, that is, a Washington appeals court reversed the decision in 2010.
In response to the overruling, Arthur Spitzer, legal director of the American Civil Liberties Union National Capital Area said at the time, “We’re gratified that a unanimous DC Circuit agreed that protecting civil liberties requires that the technology of the twenty-first century be evaluated on its own terms, and not as if it were still the technology of past decades.”
Now, however, the Supreme Court is being asked to evaluate those terms, and evaluate them hard.
The Justice Department is saying that “a person has no reasonable expectation of privacy in his movements from one place to another,” and is now demanding that justices undo the reversal of the Jones case. In a petition filed by the Obama administration this week, the Supreme Court will weigh the terms of the Fourth Amendment when coupled with modern technology, challenging the right to be secure from “searches and seizures.” Granted, the Framers of the Constitution probably didn’t have Tom-Toms and Magellans on their mind when they were scribbling out the Bill of Rights, but if October’s decision favors law enforcement’s agenda, Big Brother will be able to secretly ride shotgun in the very near future.
In the petition filed this week, the Supreme Court is being asked to examine loopholes that authorities have to take to obtain a search warrant and how such procedures can “stifle the ability of law enforcement ages to follow leads at the beginning stages of an investigation.”
In the petition, which explicitly asks “Whether the warrantless use of a tracking device on a petitioner’s vehicle to monitor its movements on public streets violated the Fourth Amendment,” Obama administration officials argue that “GPS tracking is an important law enforcement tool,” and if not investigated fully, “the issue will … continue to arise frequently.”
While the Jones decision was eventually reversed, others that have been put in the same shoes did not turn out so lucky.
In United States v. Marquez, DEA agents placed a GPS on a truck that they believed was involved in drug trafficking, to which the Eighth Circuit concluded a warrant wasn’t necessary. In that case, the court said that “when police have reasonable suspicious that a particular vehicle is transporting drugs, a warrant is not required when, while the vehicle is parked in a public place, they install a non-invasive GPS tracking device on it for a reasonable period of time.”
In the case of United States v. Pineda-Moreno, authorities trailed a suspect for over four months using various types of mobile tracking devices. After officers noticed the car was en route from a suspected marijuana grow site, they pulled Pineda-Moreno over, smelled pot and arrested him. Attorneys argued that “the agents’ use of mobile tracking devices continuously to monitor the location of his Jeep violated his Fourth Amendment rights,” but the Ninth Circuit court rejected this, saying, “the only information the agents obtained from the tracking devices was as log of the locations where (his) car traveled — information the agents could have obtained by following the car.”
The DC circuit court that overruled Jones’ case felt otherwise.“A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts,” read their opinion.
After the Jones reversal, presiding judges issued an opinion that said, “It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work . . . It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person‘s hitherto private routine.”
Regarding the “substantial and recurring importance” of the question of legalities, the petition notes that, “although in some investigations that government could establish probable cause and obtain a warrant before using a GPS device, federal law enforcement agencies frequently use tracking devices early in investigations, before suspicions have ripened into probably cause.”
It goes on to say that needing a warrant could keep authorities from gathering information to establish probable cause, thus “seriously imped[ing] the government’s’ ability to investigate leads and tips on drug trafficking, terrorism and other crimes.”
In lay terms, the government wants to outfit your ride with a GPS before they have a case against you so that they can build one in the future.
Come later this year, authorities might be able to find all that out about you — whether or not you are aware and certainly without a warrant. In the meantime, it is advisable to take your Buick off the road and start checking your shoes for wires.
- Supreme Court Agrees to Hear Key Warrantless GPS Tracking Case (eff.org)
- Supreme Court will decide when feds can follow you with GPS [Drive Free Or Die] (jalopnik.com)
- Supreme Court will set rules for warrantless GPS tracking (news.cnet.com)