GPS Recorders and Law Enforcement Accountability
Decreasing technology costs challenge privacy. In the United States, privacy is protected by law and economics. Economic feasibility is the often unmentioned leitmotif behind our constitutional rights. Government surveillance can broaden substantially when the costs dwindle to insignificance. This is a challenge. For example, telephones were a century in the future when the US Constitution and its first ten amendments, referred to as the Bill of Rights, were ratified. The advent of the telegraph and telephone in the 19th century created a new situation, one that eventually required legislation to ensure privacy and law enforcement accountability. Inexpensive GPS recorders present such a challenge.
A new item in the government's arsenal is the GPS recorder. GPS recorders have significantly dropped in price in recent years. This cost reduction is fundamentally altering the economics which protect privacy. This dilemma is highlighted in the recent decision from the US Court of Appeals for the Ninth Circuit in United States v. Pineda-Moreno.
In Pineda-Moreno, the police attached a GPS recorder to the undercarriage of the defendant's car and used it to monitor the defendant's movements. The Ninth Circuit held that the police were not required to obtain a warrant before using a GPS recorder in this way, as the space where the GPS recorder was placed, the outside area of a car, was not private, nor were the activities which were monitored – the movements of the defendant's car in public spaces.
In my opinion, the court's opinion misses a major point. While it may be offensive, the real problem is not the attachment of the device to the car. The problem is the information subsequently collected. Clearly, a telephone subscriber has “no reasonable expectation of privacy,” to use the court's words, for a telephone junction box owned by a third-party. Yet the right to insert monitoring arrangements within that junction box allowed access to otherwise private conversations and information.
Inexpensive GPS devices present a similar challenge to that of the telephone. We have never worried that a person's movements in public might somehow implicate privacy concern. We have never before needed to be concerned - the information was effectively protected by an adverse cost-benefit ratio. Information capture, aggregation, and correlation is costly. We have crossed the cost/benefit Rubicon: inexpensive computing, data storage, and location recording has made mass-scale recording and correlation economically viable. Economic feasibility with a legal control and accountability vacuum is a serious danger to a free society and the rule of law.
Several years ago, in “Protecting Web Sites”, I noted that Internet access to data created hazards merely by reducing the cost and difficulty of obtaining information. The collation of this information is the hazard. This “greasing of the skids” makes feasible dangers previously moot, not because of inability, but because of the difficulty (what I refer to as “friction” in conversation). Such a reduction in friction led to the death of actress Rebecca Shaeffer.
A parallel phenomenon is at work in surveillance. Historically, detailed surveillance has always been an extremely expensive activity. This expense dramatically limited its use. It is worth considering that a maintaining a single, two-officer surveillance team round-the-clock easily exceeds US$ 600,000.00/year. Clearly, if one is going to expend a significant fraction of US$ 600,000.00, one had better produce significant results. This economic limitation may historically have been more important than requirements to obtain warrants. The protection provided by such costs, more than the protections provided or not provided by the Fourth Amendment, have prevented mass surveillance of our citizens.
Consider the difference when the cost of surveillance is reduced to $ 100.00/year. The marginal cost of widespread surveillance is no longer prohibitive. Mass warrantless surveillance is now economically and technically feasible. Structure and accountability is now required.
Appropriate use of the dossiers which result from 24x7 warrantless surveillance presents another serious issue. With all due respect to our law enforcement community, there is no legal guarantee that the information will not be misused. If the information is public, the government may use it as it sees fit. For those in the public eye, the dossier becomes an avenue for blackmail, extortion, or other misuses. It also becomes an attractive nuisance. Causing a problem for someone now becomes as easy as “dropping a dime” and supplying a few facts from the dossier to the media or other interested party. Nature will then take its course.
Ironically, the Ninth Circuit focused on the narrow question of whether attaching a GPS recorder to a suspect's car without a warrant was a violation of the 4th Amendment to the US Constitution. Except for dissenting comments by Chief Judge Alex Kozinski in the decision to deny an en banc rehearing before a full panel, the ruling did not address the implications of the shifted economics. In a Constitutional sense the court may well be correct; but in a moral and societal sense, such surveillance should be brought under court supervision to prevent abuse. Misuse of the data gathered by such monitoring should be subject to legal and monetary sanctions.
Two of the judges hearing the appeal found no violation, since the monitored activities were otherwise public. Chief Judge Alex Kozinski dissented, reportedly  opining that emplacement of a recording device should be considered an activity that requires a search warrant authorized by the court. Judge Kozinski's reasoning was that the majority's opinion created a wealth-based two-tier environment. Those who could afford to live in gated communities were immune to such emplacement; those who did not have such security were at risk.
There is a saying among attorneys that “Hard cases, it has frequently been observed, are apt to introduce bad law”. The particular case before the court involved a drug arrest, but the discussion about the need for warrants needs to transcend that particular fact. The decision is not limited to drug cases. In any event, as the late Michael Crichton demonstrated in “Disclosure”, it is disturbing if a change in the context of a case makes one want to conclude differently. As noted by Justice Oliver Wendel Holmes on the subject of the US Constitution in Lochner v. New York,: “It is made for people of fundamentally differing views, …” .
What Chief Judge Kozinski's dissent omitted was a far larger danger than the creation of a two-tier society based upon wealth. Gated communities are not isolated. Inhabitants drive their vehicles through the gate and into public. Owners go to restaurants, banks, stores, and other non-private places. In any of these public areas, the vehicle could easily be equipped with a GPS recorder. The recorder could even from time to time upload the data collected using the mobile telephone network. While similar to the bugging techniques featured by Dan Brown in the “Da Vinci Code”, such techniques are far from fictional. What can be done with whales and birds  can just as easily be done with automobiles operated by humans. This creates previously unforeseen problems.
I believe that Chief Judge Kozinski identified the correct genus of problem, namely economics. However, with all due respect, I believe that Judge Kozinski may have missed the far more pernicious danger: the economics of surveillance. Following the court's reasoning, there is no legal prohibition on mass surveillance without accountability. Permitting such surveillance without court supervision invites abuse.
Surveillance economics have been dramatically changed by technological advances. As a society, a conversation is needed to re-establish the balance between privacy and law enforcement. If these activities are permitted, a legal framework for accountability and fruits of such surveillance should be established. Penalties should be established for the improper disclosure of information in such dossiers. The economic balance that has preserved privacy since colonial times more than two centuries ago has unraveled in a manner unforeseen by those who wrote the Constitution and the Bill of Rights. The protections against mass surveillance need to be re-established.
|||Global Positioning System|
|||United States v. Pineda-Moreno. US Court of Appeals, Ninth Circuit, Case No. 08-30385, Retrieved from http://caselaw.findlaw.com/us-9th-circuit/1497005.html on August 31, 2010|
|||Robert Gezelter (2002) “Protecting Web Sites” In Computer Security Handbook, Fourth Edition, pp 22-20|
|||Robert Gezelter (1995) “Security on the Internet” In Computer Security Handbook, Third Edition, pp 23-6, et seq.|
|||Ellen Aldermann and Caroline Kennedy (1995) The Right to Privacy, Alfred A Knopf|
|||Surveillance in the United States does not require a warrant. However, the historical record is replete with episodes where unproductive surveillance was terminated due to cost and manpower issues.|
|||Using an annual salary of $ 50,000.00/officer-year and an overhead factor of 100%.|
|||Adam Cohen “The Government Can Use GPS to Track Your Moves”, Time, August 25, 2010|
|||Winterbottom v Wright Judge Rolfe. (1842) 10 M&W 109|
|||Lochner v. New York, 198 U.S. 45, 76 (1905)|
|||Dan Brown, The DaVinci Code pp 365|
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