One Nation Under Surveillance: A New Social Contract to Defend Freedom Without Sacrificing Liberty
by Simon Chesterman
Oxford University Press, 297 pp., $45.00
Nothing to Hide: The False Tradeoff Between Privacy and Security
by Daniel J. Solove
Yale University Press, 245 pp., $25.00
The Rights of the People: How Our Search for Safety Invades Our Liberties
by David K. Shipler
Knopf, 366 pp., $27.95
In September 2005, federal law enforcement agents in the District of Columbia suspected Antoine Jones, a local nightclub owner, of drug trafficking. Without a valid warrant, they installed a Global Positioning System (GPS) device on his car, and monitored it around the clock for four weeks. The monitoring led to the discovery of substantial amounts of cocaine. Jones was convicted of conspiracy to distribute the drug, and sentenced to life imprisonment.
The US Court of Appeals for the D.C. Circuit ruled that the GPS monitoring of Jones’s car was a warrantless search in violation of the Fourth Amendment, and reversed his conviction. The Obama administration sought review in the Supreme Court, contending that such monitoring invades no privacy, and therefore requires no warrant, no probable cause, not even any specific suspicion of wrongdoing. On November 8, the Court heard arguments in the appeal; a decision is expected by June.
United States v. Jones is the most important privacy case to reach the Supreme Court in years. It requires the Court to decide whether the Fourth Amendment’s safeguards remain meaningful in the digital age, when widely available technological innovations—including GPS devices, cell phones, computer data-mining programs, and the like—make it possible to watch citizens more intimately and comprehensively than was remotely conceivable when the Bill of Rights was adopted.
These devices give the state the Orwellian ability to follow virtually every movement people make and their every keystroke at the computer. If, as the Obama administration would have it, the state can engage in such monitoring without first developing any objective basis for suspicion, privacy may become as “quaint” and “obsolete” as then White House counsel Alberto Gonzales once characterized the Geneva Conventions. As Justice Stephen Breyer observed during the oral argument, the administration’s theory would allow the state to use GPS devices to monitor “twenty-four hours a day the public movement of every citizen of the United States.” Or as Chief Justice John Roberts put it, bringing the point even closer to home, nothing would stop the FBI from using GPS devices to monitor the justices’ own vehicles.
The Jones case arises from the ongoing “war on drugs,” which has simultaneously made the United States the uncontested world leader in per capita incarceration, prompted the radical dilution of Fourth Amendment protections, and done little to limit the ready availability of drugs. But the issues Jones presents are equally pressing with respect to that other war, the “war on terror,” which continues despite the Obama administration’s jettisoning of the label.
The Fourth Amendment’s core requirement that the state obtain a warrant based on “probable cause” before conducting a search is what protects the privacy of our homes, thoughts, and relationships from prying government surveillance. But it poses a challenge to both anti-drug and anti-terrorism efforts. “Probable cause” is generally defined as …