Supreme Court Ruling: Privacy Rights 1, Cops 0
Yesterday, by a 9 to 0 vote, the US Supreme Court affirmed that the cops can’t stalk anyone they feel like, whenever they feel like it, just because technology makes it so damned easy.
That’s my somewhat less-than-technical interpretation of United States v. Jones, a closely watched case that may have broad implications regarding who can track you, using what devices, for how long, and why.
Back in 2004, FBI agents surreptitiously attached a GPS tracking device to a car registered to the wife of alleged drug kingpin Antoine Jones, then tracked the car’s movements for a month, accumulating more than 3,000 pages worth of location data. Jones was arrested after the car made several trips to a house containing a stash of drugs and cash.
The problem? The Feds didn’t obtain a warrant first. (More accurately, they failed to follow the procedures outlined in the warrant they did obtain.) That violated Jones’ 4th Amendment rights against unlawful search and seizure, all nine justices agreed.
Why is this decision so important? As the Electronic Frontier Foundation argued in an amicus brief filed in 2009,
… Law enforcement authorities now have a powerful tool for conducting inexpensive, unobtrusive, twenty-four hour a day dragnet-type surveillance of an individual. The technology is also cheap enough to be used for mass surveillance of the public’s movements…. Absent a warrant requirement, the police could track unlimited numbers of members of the public for days, weeks, or months at a time, without ever leaving their desks. No person could be confident that he or she was free from round-the-clock surveillance of his or her movements and associations….The police could engage in such “Big Brother” surveillance even if the targeted individuals were completely law abiding, and presented no reasonable ground for any suspicion.
So the Supes definitely made the right call. Beyond that, though, things get a little muddled.
Scalia, who wrote the majority opinion in favor of overturning Jones’s conviction, argued that the placement of the device was a “trespass” on his property – leaving open the possibility that tracking using a non-trespassing device (like the target’s own cell phone) might be acceptable.
Alito wrote a concurring opinion that questioned the amount of time Jones was tracked without a warrant – implying that shorter periods of tracking might be acceptable. Sotomayor wrote a third opinion agreeing with the first two and flirting with the idea that people have a reasonable expectation of privacy even when they voluntarily disclose information to third parties (like cell companies), but stopped short of making a ruling to that effect.
In other words: Yesterday was a good day for us privacy fans, but the battle for location privacy has only just begun.
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