There have been a couple of news stories recently concerning the practice of law enforcement officials placing GPS devices on the cars of individuals to monitor their activities, and whether a search warrant must be obtained prior to installing the device.
Wisconsin says no warrants are needed. New York disagrees. This is certainly a hot-button issue, one of many that are developing as technology continues to creep into law enforcement tools and procedures.
On the one hand, privacy law in the US has generally evolved around the generic concept of people being entitled to be left alone. If you are in a situation that affords a reasonable expectation of privacy, courts have recognized that expectation and upheld protections.
As technology saturation continues, so too does the discussion of what makes up a reasonable expectation of privacy. If GPS units become commonplace, with the technology becoming easily available and deployed extensively, does it remain reasonable to expect your movements to not be tracked without your permission or a court order?
Wisconsin believes that collecting GPS information on an individual doesn't meet the standard to be considered a search. New York says it does. The US Supreme Court has previously ruled that police aren't required to obtain a warrant if they use technology to track and observe the kinds of things that they could observe using their eyes, ears, and nose. But New York opined that GPS allows monitoring in a manner that would require “millions of additional police officers and cameras on every streetlamp.”
Just because I know that cameras are in use everywhere does not mean I'm surrendering my right to privacy. Given the explosion in the use of video surveillance, the normal person can be captured hundreds of times in digital format, at supermarkets, convenience stores, banks, fast food restaurants, and in public venues.
So what's the difference?
For one thing, those cameras are located in places where the public gathers and interacts, so I have less of an expectation of privacy than I would, say, in my basement. Similarly, those recording devices are casting a wide net - everything that goes on within the viewfinder is captured and recorded. I'm not being singled out for surveillance - I could be, but typically not.
Placing a GPS device on my person or vehicle is invasion of my privacy from the moment it occurs. The intent is to track my movements independently from anyone else, to segregate my activity from others. By its very nature, my privacy is being infringed because I'm being watched by a government interest in a way that is different than the typical population.
Plus, the vehicle is my property - it belongs to me, and no one should be able to add devices or change the vehicle without my knowledge or permission, unless a court agrees there's ample reason to believe I'm breaking the law and grants a warrant for enhanced surveillance.
Privacy law has always been several steps behind modern technology, so expect a flurry of activity on this topic in the coming years. Today's electronics, from cell phones to OnStar to handheld computing devices, allow a much simpler, readily-available look at the movements and activities of individuals, to both provide an alibi (I couldn't have killed her - I was logged on to a hotspt in a Starbucks 10 miles away, sending email and looking things up on the Google) or proof of guilt (my DNA is all over that knife).
Until courts become as sophisticated in their knowledge and application of technology as it applies to procedures of evidence, we'll continue to witness contradictory decisions by differing jurisdictions.
Since Warren and Brandeis wrote their famous essay on "The Right to Privacy" in 1890, it's been used as a reference point through the industrial revolution into the digital age. It's now time to have a deeper look at what technology has wrought when it comes to making public the details of someone's private life.