Deep judicial disagreements over increased police use of GPS surveillance
The U.S. Court of Appeals for the District of Columbia on 6 August overturned a drug-trafficking conviction because the police, without a warrant, placed a GPS tracking device on the suspect’s car; the decision contradicted decisions in three similar GPS-related cases by appellate panels in Chicago, St. Louis, and San Francisco; there are fierce judicial disagreements on the issue: Judge Douglas Ginsburg, who oppose GPS surveillance without a warrant, writes that “Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble;” Judge Richard Posner, who says warrants are not necessary for GPS surveillance, says that the Fourth Amendment “cannot sensibly be read to mean that police shall be no more efficient in the 21st century than they were in the 18th”; Chief Judge Alex Kozinski characterized the GPS tracking as “creepy and un-American” and contended its capabilities handed “the government the power to track the movements of every one of us, every day of our lives”
Advances in technology — especially, technologies put to use by law enforcement — continue to erode privacy, and the latest such advance to draw attention — and consternation — is GPS. This is part of a more general trend, because the growing use by the police of new technologies that make surveillance easier and cheaper to conduct is raising difficult questions about the scope of constitutional privacy rights, leading to disagreements among judges.
The issue is so divisive, that even judges who generally belong in the same philosophical camp find themselves in disagreement over it, as the examples below of three conservative judges — Douglas Ginsburg, Richard Posner, and Alex Kozinski — show.
Charles Savage writes in the Seattle Times that a federal appeals court, for example, issued a ruling 6 August that contradicts precedents from three other appeals courts over whether police must obtain a warrant before secretly attaching a GPS device beneath a car (see “Court: use of GPS to track criminals requires warrant,” 26 May 2009 HSNW).
The issue is whether the Fourth Amendment’s protection against unreasonable searches covers a device that records a suspect’s movements for weeks or months without any need for an officer to trail him.
The GPS-tracking dispute coincides with the emergence of other technological tools that expand police-monitoring abilities, including automated license-plate readers in squad cars (see “License-plate readers help police, alarm privacy advocates,” 15 June 2010 HSNW), speed cameras mounted on streetlight poles, and the widely discussed prospect of linking face-recognition computer programs to the proliferating number of surveillance cameras.
Savage notes that some legal scholars say the increasing use of such high-tech techniques for enhancing traditional police activities is eroding the boundaries that used to limit how far a law-enforcement official could intrude on people’s privacy without court oversight. They have called for a fundamental rethinking of how to apply Fourth Amendment privacy rights in the twenty-first century.
“Often what we have to do with the march of technology is realize that the difference in quantity and speed can actually amount to significantly more invasive practices,” said Paul Ohm, a University of Colorado law professor and former federal computer-crimes prosecutor. “It’s like you keep turning the volume knob and it becomes something different, not the same thing just a little louder.”
Such calls seemed to be answered 6 August by an ideologically diverse panel on the U.S. Court of Appeals for the District of Columbia.
