So much is being written about people’s fears of losing their privacy. People who live in democratic societies are starting to feel as if they are slowly, but surely being transitioned into a police state. These fears are real and valid with the advancements of technology. However, laws being passed to protect the privacy of our citizens are not keeping up with these advancements.
On January 23, the U.S. Supreme Court ruled unanimously that law enforcement authorities do not generally have a right to affix a GPS tracking device to a suspect’s car without first obtaining a valid warrant. This case, United States v. Jones, is being referred to as one of the most important Fourth Amendment tests in a decade. However, the court’s decision only begins to address how the privacy rights of citizens will be protected in our technological world.
There are many more ways today to perform surveillance without physically trespassing on private property, a point recognized by Justice Samuel Alito in a concurrence joined by three other justices. Justice Sonia Sotomayor wrote in another concurring opinion, “the Fourth Amendment is not concerned only with trespassory intrusions on property.”
Justice Alito said the court should address how expectations of privacy affect whether warrants are required for remote surveillance using electronic methods that do not require the police to install equipment, such as GPS tracking of mobile telephones.
In his opinion, Justice Antonin Scalia wrote:
“It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.”
Let’s consider our mobile phones. Mobile phone service providers log the list of cell sites to which our cell phones connect throughout the day. Mobile apps gather data on the usage patterns of our wireless devices and often track device location to the accuracy of a specific residence or office building, undermining the oft-cited claim that the data gathered is not “personal.” Much of this data is collected and then sold with our consent, in accordance with privacy policies that few of us read before accepting, to a complex ecosystem of mobile application providers and advertisers.
When we walk into a store, restaurant, office building, or sit in a taxi, images of us are recorded and date-stamped.
In the past, it would have been impractical to archive all of this information, but this is no longer the case. Retail hard drive costs are over one million times cheaper today than they were two decades ago. About $50 worth of storage can hold the information identifying the location of each of one million people to 4.5-meter accuracy at five-minute intervals, 24 hours a day for a full year.
What about data collected from video surveillance cameras or license plate cameras? It is becoming less expensive to archive data from video surveillance cameras. License plate cameras record our automobile trips. In addition, I wrote a story yesterday about the new “intellistreets” street lamps soon to be installed on Chicago streets and other cities. These “street lamps” can monitor conversations and take pictures among many other capabilities.
The days when being tracked is the exception rather than the rule are coming to an end. Inevitably, we are building an infrastructure that enables location surveillance decisions to be made retroactively, reducing the need to determine in advance who should be surveilled.
In the future, the issue of before-the-fact location-tracking warrants will be largely irrelevant. All of the necessary data will be collected automatically. The important privacy questions will instead concern the protections that apply to that data: Who can see it and under what circumstances?
In our post-911 world, most would agree that the government needs the ability to access archived information about the movements of a person credibly believed to be planning, for example, a terrorist attack. But what about juveniles suspected of petty crimes? What types of location data should be available to parents engaged in a child custody battle? Or former business partners embroiled in a legal dispute?
The Supreme Court has not yet addressed these questions but inevitably it will. The answers/decisions, far more than the ruling in United States v. Jones, will help define the meaning of privacy in 21st-century America.