Earlier today the Court heard arguments in United States v. Jones. For a solid month, the feds tracked Jones with the aid of a GPS device hidden on his car. And they got him. He dealt drugs. The feds figured it out and convicted him. Why should anybody care? GPS data can be very revealing. Shouldn’t we cheer?
But when can the government use that power and what rules constrain it? In this case, the government got a warrant but ignored it – let it expire before they attached their GPS to Jones’ car, then kept it there and tracked him three times longer than the warrant would have allowed. So the question becomes what the feds can do without a warrant, on their own, without so much as having to explain themselves or document their behavior.
Government, an official or police officer could target someone for any reason, good or bad, political or personal, in the expectation of finding something wrong or that can be used to injure, or some other advantage. Dan Solove who has done groundbreaking work on privacy refers to these as the kinds of things described by George Orwell in 1984, a risk of being watched, made vulnerable, if you don’t conform to what someone, politician, high or petty bureaucrat, wants you to do, because they have freedom to roam in your private life for reasons of their own. That Orwellian problem is what limitations on attaching the GPS are designed to prevent.
In 1914 the Supreme Court decided that evidence seized by federal officers in violation of the Constitution cannot be admitted in federal courts. The federal government has been living under that rule for almost a century. Here the government had no excuse for failing to get a proper warrant and abide by its terms.
There’s another problem. The information will be misused. The following are not hypotheticals: information will be used for extortion, commercial advantage, public ridicule, even voyeurism. It will become part of a database shared with private businesses, then matched or mismatched with other databases to reveal still more that can be used for commercial gain or competitive advantage, or used to deprive us of things we might want on the basis of information so widespread that it cannot be eradicated, and perhaps not even suspected. Dan Solove calls that the Kafkaesque problem – once the information is collected and becomes part of giant databases, it is almost impossible to correct or delete. That Kafkaesque problem is about controls over how the information is used, a problem we’ve focused much less attention on than whether the government can get the information in the first place. But if we’re willing to let the government get the information, and a lot of Americans are, then we need to focus on the second problem – what will become of it, especially what will become of the information that is not part of a criminal prosecution.
Curiously, for those in the audience who support government regulation of business, the lack of restraints in this area will seem ominous, but for those in the audience who despise government regulation of business, the lack of restraints in this area will seem just fine. Maybe we all have something to learn.
— This commentary was broadcast on WAMC Northeast Report, Nov. 8, 2011.
Weeks v. United States, 232 U.S. 383