# Oh, good! A New Constitutional Theory of Privacy! **URL:** \ **Category:** Great Debates\ **Created:** [August 11, 2010, 4:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942 "2010-08-11T16:06:12Z")\ **Posts on this page:** 20\ **Page:** 2
**Author:** ![Procrustus](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/procrustus/32/2994_2.png) [@Procrustus](https://boards.straightdope.com/u/Procrustus)\ **Post date:** [August 11, 2010, 5:11pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/21 "2010-08-11T17:11:14Z")
> [@Bricker](#): > > > [@Marley23](#): > > > > Is that what the Fourth Amendment says? Probably not. But I think I like the theory. > > You want to propose a federal statute prohibiting it? Right there with you. > > You want to claim the Constitution already forbids it? There, you lost me. > > . You seem to disagree with the the holding of the court, but I’m not sure why. You don’t think a person has an legitimate expectation in the privacy of his vehicular movements over the course of a month. The court did. I could see the SCOTUS going either way on this, but it’s an unsettled question and the DC Circuit opinion does not seem unreasonable to me. Your title implies there are negative repercussions of this ruling, I don’t see any. Hence the “relevance” of my “they had time to get a warrant if they wanted” comment. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [August 11, 2010, 5:15pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/22 "2010-08-11T17:15:07Z")
> [@Bricker](#): > > They say that even though an individual movement may be public, the sum total of the movements is not – that there is a _mosiac_ theory of the Fourth Amendment which says that an individual piece of information may have no expectation of privacy, and another also no expectation of privacy, and still another no expectation of privacy… but when they’re all put together, there is suddenly an expectation of privacy. > > Now, this kind of analysis makes sense if you’re talking about, say, classified information. This sort of mosaic analysis either makes sense, or it does not. Note that “it makes sense when, and only when, the result serves the government’s interests” is not on the menu. ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [August 11, 2010, 5:16pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/23 "2010-08-11T17:16:51Z")
> [@Sage\_Rat](#): > > My point was in looking at whether entirely legal means of tracking someone – i.e. something that any person on the street could do – could be viewed as an invasion of privacy. If the 4th Amendment restricts the police from invasions of privacy, then they’re restricted from this sort of behavior. Oddly enough, the court discussed some stalking kind of cases (Jackie O’s invasion of privacy case due to "endless snooping) in support of it’s proposition that the cumulative nature of the searches may be violative of the 4th Amendment. They also cite to some state laws that make it illegal (unless you’re law enforcement) to “use an electronic tracking device to determine the location or movement of a person,”. That law stated: “electronic tracking of a person‘s location without that person‘s knowledge violates that person‘s reasonable expectation of privacy,and implicitly but necessarily thereby required a warrant for police use of a GPS.” They also cited cases from other jurisdictions (Washington and NY) holding the same thing. I’m not sure I’m buying their rationale on the cumulative nature being a violation of a reasonable expectation of privacy. But at least it should be given a fair shake in debate. ---
**Author:** ![Steve\_MB](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/steve_mb/32/5339_2.png) [@Steve\_MB](https://boards.straightdope.com/u/Steve_MB)\ **Post date:** [August 11, 2010, 5:17pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/24 "2010-08-11T17:17:07Z")
> [@Hamlet](#): > > > [@chronos](#): > > > > edit: When i had started typing that, nobody else had mentioned stalking yet. > > type faster!!! Maybe slow typing was the reason the police couldn’t get a warrant to bug someone’s car over the course of a month-long investigation. ---
**Author:** ![shiftless](https://avatars.discourse-cdn.com/v4/letter/s/e9c0ed/32.png) [@shiftless](https://boards.straightdope.com/u/shiftless)\ **Post date:** [August 11, 2010, 5:18pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/25 "2010-08-11T17:18:53Z")
So, with this in mind, would it be OK for me to attach a GPS device to the car of a neighbor who I suspect works at a top-secret government facility? Just for my own purposes of course. Surely he couldn’t object to me noticing his public movements. > [@Chronos](#): > > For comparison, if I happen to meet a lady in front of her house one morning, and tell her that I like the way she’s wearing her hair, I’m just being a friendly neighbor. But if I’m there every time she enters or leaves, and every time she opens her door, and also just happen to show up at her office every day, then I’m stalking her. There’s nothing improper about any one of the contacts taken individually, but there is something improper about all of them taken as a whole. Your best bet would be to attach a GPS device to her undercarriage when she isn’t looking. That seems to be A-OK. ---
**Author:** ![MikeF](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@MikeF](https://boards.straightdope.com/u/MikeF)\ **Post date:** [August 11, 2010, 5:30pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/26 "2010-08-11T17:30:45Z")
Former detective here. We used these things a fair amount. In the early days no warrant was needed. Then some judge decided that if we used the car’s electrical system we needed a warrant. If we used an internal battery, no warrant. I guess we were seizing electricity or something. Then some other judge (group of judges really) decided we needed a warrant in all cases, and a CDW (communications data warrant) at that. CDWs were normally used for wiretaps but the courts gradually expanded their use to phone records, clone beepers (remember beepers?) or anything else that involved searching records of someones electronic communications. CDWs generally had a higher standard of probable cause but I think they may have lightened up on that a little with the exception of actual wiretaps. I never could understand how a GPS logger or live tracker involved the interception of anyones communications. But these people are lawyers and sometimes are lacking in logical thinking. Following this “mosaic” theory, a warrant would be needed just to follow someone 24/7. The ironic thing is that GPS devices were often used to obtain probable cause (you non-legal types might have an inaccurate idea of what “probable cause” is. In NJ it has come to mean “The only possible explanation for what you are observing is the commission of a crime”). Now you need the pc first. The intrusion is very limited an no cops that I know of have the time or inclination to go slapping these things on peoples cars just for kicks. If there are individual abuses then deal with them individually. Mach Tuck - are you saying its ok to follow people as long as you don’t have some sort of advantage? Cars but no choppers? Choppers but no marking of the car in some way? The only things a GPS does vs normal physical surveillance is a)save money and b)minimize the chance the target can lose the tail. If you want maximum protection from “the man”, move to NJ. Your trash is safe here. You will not be chased for running away when the cops show up. You will not be Tazered. You will not be shot with a bean bag. If you even think the word “lawyer” all questioning will be stopped. Just be prepared for the tax and insurance bills. We’ll get you one way or another. Bwaaaaaaaah! ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [August 11, 2010, 5:44pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/27 "2010-08-11T17:44:31Z")
> [@MikeF](#): > > The intrusion is very limited an no cops that I know of have the time or inclination to go slapping these things on peoples cars just for kicks. That’s really not the point. Whether surveillance is done for kicks or with serious delibertation, the state should have to meet a high threshold before it can spy on someone and a person’s privacy should be respected. ---
**Author:** ![RTFirefly](https://avatars.discourse-cdn.com/v4/letter/r/c77e96/32.png) [@RTFirefly](https://boards.straightdope.com/u/RTFirefly)\ **Post date:** [August 11, 2010, 5:48pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/28 "2010-08-11T17:48:57Z")
> [@Bricker](#): > > But it’s not what the Fourth Amendment says. > > Is it? What the Fourth Amendment says: > [@](#): > > The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized. This is a perfect example of why our C.J.'s analogy of calling balls and strikes is so totally bullshit. If you look at the Amendment itself, considering none of the intervening case law, then you’ve got your opinion of whether it protects Jones from this sort of surveillance, and I’ve got mine. There are, I’m sure, plenty of arguments that can be made from both sides. There has been plenty of case law about the Fourth Amendment since it was ratified, and that surely narrows down the scope of the arguments somewhat. But I’ll bet that even the case law currently in existence comes far from making this a cut-and-dried call. Is this a ball or a strike? We’re still working on defining the strike zone. And that’s almost exclusively what the Supreme Court does. The balls and strikes, in cases where the boundaries of the strike zone are unambiguous, have been handled by the lower courts or state courts. The Supreme Court perpetually refines its definition of the strike zone. ---
**Author:** ![Jackmannii](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/jackmannii/32/311_2.png) [@Jackmannii](https://boards.straightdope.com/u/Jackmannii)\ **Post date:** [August 11, 2010, 5:49pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/29 "2010-08-11T17:49:21Z")
> [@Procrustus](#): > > > [@Bricker](#): > > > > You want to propose a federal statute prohibiting it? Right there with you. > > > > You want to claim the Constitution already forbids it? There, you lost me. > > You seem to disagree with the the holding of the court, but I’m not sure why. You don’t think a person has an legitimate expectation in the privacy of his vehicular movements over the course of a month. The court did. I could see the SCOTUS going either way on this, but it’s an unsettled question and the DC Circuit opinion does not seem unreasonable to me. Agreed. Then again, I tend not to get upset when higher courts find in favor of privacy rights, whether or not they are “new” (as the Supreme Court did in upholding abortion rights in Roe v. Wade). ---
**Author:** ![jaxbus4000](https://avatars.discourse-cdn.com/v4/letter/j/c89c15/32.png) [@jaxbus4000](https://boards.straightdope.com/u/jaxbus4000)\ **Post date:** [August 11, 2010, 5:53pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/30 "2010-08-11T17:53:53Z")
Does not matter to me on how any court defines privacy, I do not want any agence to be able to monitor, track, listen to, or follow me without a warrent. Just another example of our rights being chipped at slowly but surely. Next thing they will put a GPS in my daughters backpack to see if she is eating junkfood at Macdonalds and joining the great obesity crises. ---
**Author:** ![Sage\_Rat](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/sage_rat/32/399_2.png) [@Sage\_Rat](https://boards.straightdope.com/u/Sage_Rat)\ **Post date:** [August 11, 2010, 5:59pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/31 "2010-08-11T17:59:58Z")
> [@jaxbus4000](#): > > Just another example of our rights being chipped at slowly but surely. Er…your rights have been expanding with time, as **MikeF** ’s post demonstrates. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 11, 2010, 6:05pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/32 "2010-08-11T18:05:48Z")
> [@Marley23](#): > > > [@Bricker](#): > > > > Except the Supreme Court already said that is was reasonable, in _Knotts_. > > Did they use that beeper to track the defendant making one trip to a drug lab, or did they track the defendant for a month, like they did in this case? The beeper was a single trip. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 11, 2010, 6:08pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/33 "2010-08-11T18:08:14Z")
> [@villa](#): > > > [@Bricker](#): > > > > Yes, it would be constitutional. > > Except the chipping technology and the ability to use it isn’t generally available to the population. Wouldn’t that under (insert case where Scalia talks about infra red technology and growing drugs inside your house) create sufficient of a privacy interest to be protected? Kyllo. No. Kyllo does indeed seem to hinge on the government’s using a device that’s not “in general public use,” but the chip in your example is simply a GPS beacon, which IS in general public use. Although putting them in drivers’ licenses might be the thing that the general public couldn’t do, so you might be right. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 11, 2010, 6:10pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/34 "2010-08-11T18:10:33Z")
> [@Hamlet](#): > > As to the “constructively exposed” part, that’s where the court gets into the analysis of what you call “mosiac” theory. I think a much better, more accurate term, would be “cumulative”. I took that term from Judge Ginsburg: > [@](#): > > As with the ―mosaic theory‖ often invoked by the Government in cases involving national security information, ―What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene.‖ CIA v. Sims, 471 U.S. 159, 178 (1985) (internal quotation marks deleted); see J. Roderick MacArthur Found. v. F.B.I., 102 F.3d 600, 604 (D.C. Cir. 1996). Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 11, 2010, 6:11pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/35 "2010-08-11T18:11:39Z")
> [@Chronos](#): > > For comparison, if I happen to meet a lady in front of her house one morning, and tell her that I like the way she’s wearing her hair, I’m just being a friendly neighbor. But if I’m there every time she enters or leaves, and every time she opens her door, and also just happen to show up at her office every day, then I’m stalking her. There’s nothing improper about any one of the contacts taken individually, but there is something improper about all of them taken as a whole. > > EDIT: When I had started typing that, nobody else had mentioned stalking yet. Yes, that’s true. But does that make it a Fourth Amendment issue? ---
**Author:** ![Marley23](https://avatars.discourse-cdn.com/v4/letter/m/45deac/32.png) [@Marley23](https://boards.straightdope.com/u/Marley23)\ **Post date:** [August 11, 2010, 6:14pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/36 "2010-08-11T18:14:34Z")
> [@Bricker](#): > > > [@Marley23](#): > > > > Did they use that beeper to track the defendant making one trip to a drug lab, or did they track the defendant for a month, like they did in this case? > > The beeper was a single trip. I haven’t had time to read the decision as posted by **Hamlet** , but that’s what I figured. And that strikes me as a big difference. You don’t have an expectation of privacy on any one trip, but you would not reasonably expect anybody to monitor all your driving trips for a month. I’m still sorting out my opinion on the Fourth Amendment aspect. There are so many legal questions regarding surveillance and privacy these days that maybe it’s reasonable to see the amendment as apply to things like data collection and monitoring as well as physical searches. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 11, 2010, 6:15pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/37 "2010-08-11T18:15:11Z")
> [@Steve\_MB](#): > > > [@Bricker](#): > > > > They say that even though an individual movement may be public, the sum total of the movements is not – that there is a _mosiac_ theory of the Fourth Amendment which says that an individual piece of information may have no expectation of privacy, and another also no expectation of privacy, and still another no expectation of privacy… but when they’re all put together, there is suddenly an expectation of privacy. > > > > Now, this kind of analysis makes sense if you’re talking about, say, classified information. > > This sort of mosaic analysis either makes sense, or it does not. Note that “it makes sense when, and only when, the result serves the government’s interests” is not on the menu. Why? In other words, we’re talking about what the Fourth Amendment says. If we wish to talk in broader terms, like “Is this kind of snooping irritating enough that we should require a warrant by law?” then I agree with you: the argument is the same. But if we’re simply talking about what the Fourth Amendment prohibits, then it seems that’s a different discussion. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 11, 2010, 6:16pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/38 "2010-08-11T18:16:13Z")
> [@Marley23](#): > > > [@Bricker](#): > > > > The beeper was a single trip. > > I haven’t had time to read the decision as posted by **Hamlet** , but that’s what I figured. And that strikes me as a big difference. You don’t have an expectation of privacy on any one trip, but you would not reasonably expect anybody to monitor all your driving trips for a month. I’m still sorting out my opinion on the Fourth Amendment aspect. There are so many legal questions regarding surveillance and privacy these days that maybe it’s reasonable to see the amendment as apply to things like data collection and monitoring as well as physical searches. Would the Fourth Amendment be violated if the police assigned a team of 75 agents, with 35 cars and a pair of helicopters, to track you daily for a month? ---
**Author:** ![Hamlet](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/hamlet/32/2818_2.png) [@Hamlet](https://boards.straightdope.com/u/Hamlet)\ **Post date:** [August 11, 2010, 6:16pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/39 "2010-08-11T18:16:45Z")
> [@Bricker](#): > > I took that term from Judge Ginsburg: > > > [@](#): > > > > As with the ―mosaic theory often invoked by the Government in cases involving national security information, ―What may seem trivial to the uninformed, may appear of great moment to one who has a broad view of the scene.‖ CIA v. Sims, 471 U.S. 159, 178 (1985) (internal quotation marks deleted); see J. Roderick MacArthur Found. v. F.B.I., 102 F.3d 600, 604 (D.C. Cir. 1996). Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. And he took it from the federal government’s argument in Sims. Regardless of what you want to call it, my only suggestion is that you might want to give a fairer statement of the court’s reasoning before you lambast it. Especially for the non-lawyers. ---
**Author:** ![Bricker](https://avatars.discourse-cdn.com/v4/letter/b/977dab/32.png) [@Bricker](https://boards.straightdope.com/u/Bricker)\ **Post date:** [August 11, 2010, 6:18pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/40 "2010-08-11T18:18:46Z")
> [@Hamlet](#): > > > [@Bricker](#): > > > > I took that term from Judge Ginsburg: > > And he took it from the federal government’s argument in Sims. > > Regardless of what you want to call it, my only suggestion is that you might want to give a fairer statement of the court’s reasoning before you lambast it. Especially for the non-lawyers. OK, fair enough. I think you’ve done a pretty good job of fleshing out the other side, but you’re right. [Previous page](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942.md?page=1) [Next page](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942.md?page=3)