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Keeping Watch on the Detectives

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Alex Wong and Melina Mara/The Washington Post/Getty Images
The operations floor of the National Counterterrorism Center, McLean, Virginia, June 2011

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 “a reasonable belief that a person has committed a crime” or that evidence of a crime will be found. Drugs are relatively easy to conceal, and practically all participants in a drug transaction or terrorist conspiracy will seek to avoid scrutiny, making it difficult for the authorities to develop the basis for such a reasonable belief. When “war” has been proclaimed, privacy begins to look like an all too abstract luxury.

The specific question posed in the Jones case concerns whether the use of a GPS to monitor a car’s movements for an extended period is a search subject to the Fourth Amendment. (The Fourth Amendment’s requirement of a warrant based on probable cause applies only if the government conduct constitutes a “search” or “seizure.”) The broader issue presented, however, is how privacy should be conceived in the digital age.

Should the fact that your cell phone company knows and records your location at any given moment mean that the government should be free to demand that information without satisfying Fourth Amendment requirements? Should the long-standing police authority to search an individual upon arrest include reviewing all the texts and e-mails stored in his “smart phone”? Should customs officers’ authority to search luggage without establishing any cause for suspicion at the border extend to laptop computers, which contain infinitely more private information than most of what could have been carried across the border when the “border search” doctrine was first created?

Before the GPS, if police wanted to know where an individual traveled for a month, they would have had to assign twenty-four-hour surveillance teams to attempt to track him physically, a prohibitively expensive and probably impossible task. Now they just attach a GPS monitor to his vehicle and make sure it has long-lasting batteries. Because it is so inexpensive, and operates without human intervention, the GPS makes dragnet surveillance possible. How should Fourth Amendment doctrine respond?

The Supreme Court has not been particularly swift at adapting to changes in surveillance technology. It took the Court about fifty years, for example, to rule that wiretapping a telephone is a search covered by the Fourth Amendment. The Court initially reasoned that a wiretap is not a search because it does not physically invade one’s property. But in 1967, the Court changed course, announced that the Fourth Amendment protects “people, not places,” and concluded that any official action that intrudes upon a “reasonable expectation of privacy” is a search. That decision, Katz v. United States, was praised for bringing the Fourth Amendment into the twentieth century.

Since then, however, the Court has often taken a crabbed view of what constitutes a “reasonable expectation of privacy,” rendering the Fourth Amendment increasingly inapplicable to government intelligence-gathering. Some courts have ruled, for example, that because a GPS records only information that is already public—the comings and goings of an automobile on public streets—the owner has no “reasonable expectation of privacy” justifying Fourth Amendment protection. The Supreme Court accepted a similar rationale in 1983, holding in United States v. Knotts that placing an electronic beeper in a container in order to monitor it after it was purchased from a chemical company and driven to a remote cabin did not invade any expectation of privacy, and therefore did not require a warrant.

The D.C. Circuit in Jones concluded that there is a qualitative difference between tracking a car on a single journey from point A to point B and monitoring its every movement on a twenty-four-hour basis for four weeks. The latter discloses a great deal more private information about an individual, the court noted:

A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.

In addition, while the beeper in Knotts merely assisted the police in manually following the car from point A to point B, the GPS enables unlimited automatic tracking without human intervention. Thus, while each distinct movement of Antoine Jones’s car was theoretically observable without technological enhancement, the sum total of information gleaned from the GPS was not; for all practical purposes, it could be obtained only by means of the GPS monitor, and therefore intruded on a “reasonable expectation of privacy,” triggering the Fourth Amendment’s requirement of a warrant based on probable cause.

The Jones case may have implications for other technologically enhanced surveillance as well. The Supreme Court has long ruled, for example, that we forfeit our expectations of privacy with respect to information we share with third parties, permitting the government to obtain that information without a warrant or probable cause. On this rationale, the Court has permitted the police to rummage through garbage, obtain bank records, and equip informants with a hidden recording device without any objective basis for suspicion or judicial oversight.

In today’s world, this principle has vast repercussions for privacy, because unless one lives as a hermit, virtually everything one does requires sharing information with a third party—whether a credit card company, Internet service provider, phone company, bank, or pharmacy. Computers make it feasible for all these entities to keep accurate and easily accessible records of such transactions, and for the government to collect and analyze the data. Because of the “third-party disclosure” rule, the Fourth Amendment at present provides no protection for that information.

Suppose the Supreme Court were to recognize that a warrent were required for extended GPS monitoring, by virtue of its ability to collect and aggregate personal information not otherwise practically obtainable without human intervention. It might follow that computer data mining, in which the government similarly uses technological means to collect and aggregate lots of otherwise unprotected information to draw a detailed picture of an individual’s private activities, should also require prior judicial approval. Border searches of laptops and police use of cell phone tracking records and devices might similarly deserve Fourth Amendment protection. But if, by contrast, the Court declines to take account of the threats technology poses to our privacy and rejects Jones’s claim, the Fourth Amendment may well be on the way to being superseded by technology. The Constitution would no longer have much of a role in preserving a sphere of privacy from government oversight.

Such questions have increasingly occupied the attention of lawyers, scholars, law enforcement officials, and journalists. In One Nation Under Surveillance, Simon Chesterman, a law professor at the National University of Singapore and New York University, maintains that privacy is already a dead letter, and proposes that we concentrate instead on regulating the government’s use of the information it gathers, rather than futilely seeking to control surveillance itself.

He argues convincingly that the specter of catastrophic terrorist attacks creates extraordinary pressure for intrusive monitoring; that technological advances have made the collection and analysis of vast amounts of previously private information entirely feasible; and that in a culture transformed by social media, in which citizens are increasingly willing to broadcast their innermost thoughts and acts, privacy may already be as outmoded as chivalry.

Chesterman’s fears are well founded, at least with respect to the United States. In 2010, The Washington Post reported that

the top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.1

The Post found that 1,271 government organizations and 1,931 private contractors are engaged in national security-related work, and that more than 854,000 people have “top-secret” security clearances. Most or all of what these people and entities do is hidden from public view, but many of them, we can be sure, are watching us.

Moreover, they are aggressively developing and deploying the latest technology to do so. The New York Times revealed in 2005, for example, that President Bush had secretly authorized the National Security Agency to conduct warrantless wiretapping of US citizens’ telephone and e-mail conversations, in violation of a criminal statute designed to protect privacy. The NSA reportedly used sophisticated computer programs to sweep up millions of phone calls and sift through them automatically for suspicious words, phrases, or links. When this was revealed, the program was suspended. But the NSA program resumed when Congress amended the Foreign Intelligence Surveillance Act to empower courts to authorize such sweeping surveillance.

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    Dana Priest and William M. Arkin, “A Hidden World, Growing Beyond Control,” The Washington Post, July 19, 2010. 

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