# 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:** 3
**Author:** ![villa](https://avatars.discourse-cdn.com/v4/letter/v/bc79bd/32.png) [@villa](https://boards.straightdope.com/u/villa)\ **Post date:** [August 11, 2010, 6:21pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/41 "2010-08-11T18:21:30Z")
> [@Bricker](#): > > 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. As I mentioned in my first post, I think the GPS thing is constitutional udner current SCOTUS precedent. My no was refering to the chipping of driver’s licenses in particular, which isn’t technology generally available to the public. Thanks for _Kyllo_. I have no freaking clue why I can never remember the name. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 11, 2010, 6:23pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/42 "2010-08-11T18:23:36Z")
> [@Bricker](#): > > > [@Steve\_MB](#): > > > > 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. The question was what the government could do under the fourth amendment, yes? The 4th amendment doesn’t say anything about confidential stuff, so I don’t see how an argument could be made that the interpretation of the 4th amendment would be different if it serves the government’s interests. That would, indeed, seem to be off the menu. Right? ---
**Author:** ![Cliffy](https://avatars.discourse-cdn.com/v4/letter/c/59ef9b/32.png) [@Cliffy](https://boards.straightdope.com/u/Cliffy)\ **Post date:** [August 11, 2010, 6:25pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/43 "2010-08-11T18:25:54Z")
I suppose if you’re a strict constructionist, this is a horrifying decision. But I’m not. The Bill of Rights is plainly motivated by the protection of privacy and the prevention of government intervention into the private sphere, and logical extensions of that premise are not only well within the history of american jurisprudence, but eminently proper. –Cliffy ---
**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, 6:31pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/44 "2010-08-11T18:31:26Z")
> [@Cliffy](#): > > I suppose if you’re a strict constructionist, this is a horrifying decision. But I’m not. The Bill of Rights is plainly motivated by the protection of privacy and the prevention of government intervention into the private sphere, and logical extensions of that premise are not only well within the history of american jurisprudence, but eminently proper. > > –Cliffy Even Scalia and I disagree sometimes, and _Kyllo_ was one such. Scalia wrote the opinion of the court in _Kyllo_, and his position was almost as you describe: not so much an “extension” of the premise as it is an application of the premise to a new set of facts, facts that were _sui generis_ and had no useful analogue in prior decisions. In this case, I suspect Scalia would agree with you again. But it seems madness to me to suggest that the team of 75 full-time agents can constitutionally watch your every movement for three days but the GPS data can’t be used. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 11, 2010, 6:33pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/45 "2010-08-11T18:33:44Z")
> [@Bricker](#): > > In this case, I suspect Scalia would agree with you again. But it seems madness to me to suggest that the team of 75 full-time agents can constitutionally watch your every movement for three days but the GPS data can’t be used. Do you suppose that the 75 agents wouldn’t be considered a mosaic as well? (If so this might be bad news for law enforcement - but it could, in theory, be applied consistently.) ---
**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, 6:40pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/46 "2010-08-11T18:40:48Z")
> [@begbert2](#): > > > [@Bricker](#): > > > > In this case, I suspect Scalia would agree with you again. But it seems madness to me to suggest that the team of 75 full-time agents can constitutionally watch your every movement for three days but the GPS data can’t be used. > > Do you suppose that the 75 agents wouldn’t be considered a mosaic as well? > > (If so this might be bad news for law enforcement - but it could, in theory, be applied consistently.) Hmm… then each individual agent’s observations are legit, but moment they discuss things with one another, they’re in violation of the Fourth Amendment? Not exactly a workable viewpoint, is it? ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [August 11, 2010, 6:41pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/47 "2010-08-11T18:41:05Z")
I don’t believe that is what the Fourth Amendment says, no. But I would support a careful new Constitutional amendment that _did_ explicitly enshrine a right to privacy. ---
**Author:** ![begbert2](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/begbert2/32/3357_2.png) [@begbert2](https://boards.straightdope.com/u/begbert2)\ **Post date:** [August 11, 2010, 6:43pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/48 "2010-08-11T18:43:42Z")
> [@Bricker](#): > > > [@begbert2](#): > > > > Do you suppose that the 75 agents wouldn’t be considered a mosaic as well? > > > > (If so this might be bad news for law enforcement - but it could, in theory, be applied consistently.) > > Hmm… then each individual agent’s observations are legit, but moment they discuss things with one another, they’re in violation of the Fourth Amendment? > > Not exactly a workable viewpoint, is it? Isn’t that the same way we deal with stalking? Each action is fine, but taken in aggregate they’re not? Distributing the specific actions to various agents wouldn’t seem to change that in any meaningful way. Are stalking laws unworkable? ---
**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, 7:06pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/49 "2010-08-11T19:06:42Z")
> [@Bricker](#): > > But it seems madness to me to suggest that the team of 75 full-time agents can constitutionally watch your every movement for three days but the GPS data can’t be used. The implication of this interpretation would be that the agents couldn’t do that – at least not without a warrant. The rule isn’t that a GPS can’t be used, but that legally observable actions, in a great enough quantity, are an invasion of privacy. That’s not bound to a particular method of making observations. ---
**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, 7:28pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/50 "2010-08-11T19:28:36Z")
> [@Bricker](#): > > > [@Steve\_MB](#): > > > > 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? You’re asking why it’s not legitimate to take the position that a given analysis makes sense when it leads to a wanted result and does not make sense when it leads to an unwanted result? Who are you, and what have you done with Bricker? > [@](#): > > 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. Either constructing a mosaic in this manner impacts upon one or more of the subject’s “persons, houses, papers, and effects” (“papers”, probably), or it does not. If it does not, the argument that a mosaic of individually innocuous facts might represent a threat to the security of confidential “papers” of state evaporates – and yet the government’s classification system relies rather heavily upon that doctrine. If it does, the construction of such mosaics by the state clearly falls under Fourth Amendment scrutiny. QED. ---
**Author:** ![UltraVires](https://avatars.discourse-cdn.com/v4/letter/u/ecccb3/32.png) [@UltraVires](https://boards.straightdope.com/u/UltraVires)\ **Post date:** [August 11, 2010, 7:41pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/51 "2010-08-11T19:41:27Z")
I like the fifth amendment argument as well. As it stands, I have a car that is free from tracking devices that will allow me to travel to places unknown by the government. By attaching a GPS device, the car no longer functions in that manner. I realize that is a weak nexus, but it is my private automobile, and we are talking about activity without a valid warrant. I’m sure that I would break some sort of law if I attached a Steelers pennant to my neighbor’s car antenna. By what authority do the police mess with my car without any authorization? ---
**Author:** ![Peremensoe](https://avatars.discourse-cdn.com/v4/letter/p/ce7236/32.png) [@Peremensoe](https://boards.straightdope.com/u/Peremensoe)\ **Post date:** [August 11, 2010, 7:44pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/52 "2010-08-11T19:44:49Z")
> [@jtgain](#): > > By what authority do the police mess with my car without any authorization? I agree. This is an aspect that in fact does distinguish the GPS method from the massive team of detectives and helicopters. It wouldn’t preclude still-more-advanced technological deployments, like satellite surveillance. ---
**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, 7:45pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/53 "2010-08-11T19:45:15Z")
> [@spark240](#): > > I don’t believe that is what the Fourth Amendment says, no. But I would support a careful new Constitutional amendment that _did_ explicitly enshrine a right to privacy. Me, too! ---
**Author:** ![RadicalPi](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/radicalpi/32/9806_2.png) [@RadicalPi](https://boards.straightdope.com/u/RadicalPi)\ **Post date:** [August 11, 2010, 7:45pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/54 "2010-08-11T19:45:55Z")
I know that this idea isn’t particularly germane to the motivation behind the decision of the DC Circuit, but could one argue that in order to install the GPS, the police had to have control of the vehicle for some amount of time, and that during that time, the police had seized control of the vehicle? If the court had concluded that that time counts as a seizure, then they could have also concluded that the 4th amendment had been violated because you can’t seize things without a warrant. Granted the owner of the vehicle wasn’t really in control of the vehicle at the time of the GPS installation, and cars get towed all the time, presumably without any sort of warrant, so this idea may not hold at all from a legal perspective, but from this line of reasoning, there seems to be (for me anyway) a big difference between installing a device and following someone around. ---
**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, 7:47pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/55 "2010-08-11T19:47:05Z")
> [@Sage\_Rat](#): > > > [@Bricker](#): > > > > But it seems madness to me to suggest that the team of 75 full-time agents can constitutionally watch your every movement for three days but the GPS data can’t be used. > > The implication of this interpretation would be that the agents couldn’t do that – at least not without a warrant. The rule isn’t that a GPS can’t be used, but that legally observable actions, in a great enough quantity, are an invasion of privacy. That’s not bound to a particular method of making observations. Except that we have never before so much as attempted to analyze surveillance efforts by vast teams – and they’ve happened, with organized crime and espionage cases. Those have all passed constitutional muster. ---
**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, 7:49pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/56 "2010-08-11T19:49:31Z")
> [@jtgain](#): > > I like the fifth amendment argument as well. > > As it stands, I have a car that is free from tracking devices that will allow me to travel to places unknown by the government. By attaching a GPS device, the car no longer functions in that manner. > > I realize that is a weak nexus, but it is my private automobile, and we are talking about activity without a valid warrant. I’m sure that I would break some sort of law if I attached a Steelers pennant to my neighbor’s car antenna. By what authority do the police mess with my car without any authorization? For the moment, I am focused on the Fourth Amendment issue. So, sure, the takings clause is implicated and the government has to recompense you the difference in value between your car as it was before and your car after the monitoring device is installed. ---
**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, 8:03pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/57 "2010-08-11T20:03:04Z")
> [@Bricker](#): > > Except that we have never before so much as attempted to analyze surveillance efforts by vast teams – and they’ve happened, with organized crime and espionage cases. Those have all passed constitutional muster. According to what you said in the OP, using trackers on vehicles without a warrant has been tried before and found to pass constitutional muster (United States v. Knotts). That this case goes against previous interpretations is, indeed, the point. If passed, it should act as counter-precedence on other, related items like surveillance by vast teams. ---
**Author:** ![Diogenes\_the\_Cynic](https://avatars.discourse-cdn.com/v4/letter/d/e99b99/32.png) [@Diogenes\_the\_Cynic](https://boards.straightdope.com/u/Diogenes_the_Cynic)\ **Post date:** [August 11, 2010, 11:02pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/58 "2010-08-11T23:02:49Z")
Is this really significantly different from conventional police surveillance that can be done without a warrant? It’s generally not my wont to complain about getting more protection from the government, but I’m kind of skeptical that this is any more unconstitutional than simply following somebody. The question of whether you have a right not to have your car messed with might be more valid. **Bricker’s** remark about the value of the car being affected is a little glib and beside the point. The issue is about autonomy with regards to your own property. If they can put a GPS on your car, how about an Obama sticker? ---
**Author:** ![Richard\_Parker](https://avatars.discourse-cdn.com/v4/letter/r/35a633/32.png) [@Richard\_Parker](https://boards.straightdope.com/u/Richard_Parker)\ **Post date:** [August 12, 2010, 12:05am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/59 "2010-08-12T00:05:32Z")
The Supreme Court’s privacy doctrine is a reflection of the fact that no one really has a rigorous theory of why and what kind of privacy is important. Toss in deference to the law enforcement bugaboo of the moment (prohibition, war on drugs, war on terrorism), and you have a random-ass grab bag of amateur sociology and even more amateur historical inquiry. You can’t really blame the DC Circuit for not starting from scratch to fix the problem, and instead adding one more patch on the crazyquilt. The Fourth Amendment, by its terms, requires the Court to determine which searches are reasonable. It requires a theory of privacy that is not contained in the document itself. Where does it come from, if not this kind of amateur philosophy and sociology? Shall we defer to the framers’ views on GPS satellites? ---
**Author:** ![Nametag](https://sea3.discourse-cdn.com/straightdope/user_avatar/boards.straightdope.com/nametag/32/406_2.png) [@Nametag](https://boards.straightdope.com/u/Nametag)\ **Post date:** [August 12, 2010, 12:15am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/60 "2010-08-12T00:15:19Z")
This case, to me, resonates with concerns about surveillance and particularly the assembly of dossiers by law enforcement agencies, especially the FBI, which famously compiled dossiers on people like Martin Luther King, Jr. Has this sort of activity been tested in court against constitutional arguments? Is it still legal WRT statutes, and did the public outcry during the '70s have any effect? [Previous page](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942.md?page=2) [Next page](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942.md?page=4)