# Oh, good! A New Constitutional Theory of Privacy!
**URL:** https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942
**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:** 7
### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [September 24, 2010, 12:54am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/121 "2010-09-24T00:54:25Z")
> [@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?
Yeah, that’s in someone’s house.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [September 24, 2010, 12:57am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/122 "2010-09-24T00:57:09Z")
> [@Hamlet](#):
>
> > [@Bricker](#):
> >
> > But the DC Circuit has a different idea.
> >
> > 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.
>
> I really don’t think you’re being fair to the rationale of court.
>
> First things first, though: [Here is a copy of the ruling](http://pacer.cadc.uscourts.gov/common/opinions/201008/08-3030-1259298.pdf).
>
> The Court explains that the Knotts case you quoted, involved a single trip being tracked by beeper, but in the instant case, the Court said: “Here the police used the GPS device not to track Jones‘s ―movements from one place to another, (Knotts, 460 U.S. at 281), but rather to track Jones‘s movements 24 hours a day for 28 days as he moved among scores of places, thereby discovering the totality and pattern of his movements from place to place to place.”
>
> They then went on to use the reasonable expectation of privacy test and determined that the entirety of someone’s movements in the vehicle over a month was not publically exposed like the movements of a single trip are. They said:
>
> “First, unlike one‘s movements during a single journey, the whole of one‘s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil. Second, the whole of one‘s movements is not exposed constructively even though each individual movement is exposed, because that whole reveals more — sometimes a great deal more — than does the sum of its parts.”
>
> Now, for the “actually exposed” determination, the court cites to numerous cases about what that means, and how it doesn’t necessarily mean “if someone could possibly find it out if they followed you around for a month.” 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”.
Not that a private eye is a government actor but don’t they stalk people all the time?
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [September 24, 2010, 1:04am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/123 "2010-09-24T01:04:53Z")
> [@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. 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.
On the one hand, you don’t want to encourage fishing expeditions because you pissed off a cop. On the other hand they could very well have done this without a warrant if they used an unmarked car.
This “mosaic” right is more concocted as the “penumbra” rights.
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### Author:  [@Damuri\_Ajashi](https://boards.straightdope.com/u/Damuri_Ajashi)
#### Post date: [September 24, 2010, 1:07am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/124 "2010-09-24T01:07:20Z")
> [@Marley23](#):
>
> > [@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.
That’s really not the point. You have no constitutional right of privacy in public. Now if this guy was travelling on private roads and underground tunnels, then they would probably have to turn off the bug but this guy was driving on public roads. THere may be some level of electronic surveillance that goes to far but this is not it.
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### Author:  [@Mozart1220](https://boards.straightdope.com/u/Mozart1220)
#### Post date: [September 24, 2010, 2:40am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/125 "2010-09-24T02:40:20Z")
> [@villa](#):
>
> > [@Mozart1220](#):
> >
> > But your car is PROPERTY which is mentioned in the 4th amendment. Plus, I would argue that if a home is allowed as secure from spying, my car is an extention of my home, as a foriegn diplomat’s limo is an extention of his “country”.
>
> Argue it all you want. It’s been tried multiple times and failed. It gets interesting when you live in your car, or when you drive a mobile home, but the argument that it is an extension just doesn’t fly in court.
>
> Also, if you grow weed in your windows, the cop doesn’t need a warrant. It’s in plain view. As is a car when not sat in a garage.
Weed in the window is evidence of a crime (though a stupid thing to be illegal)
Driving my car anywhere is no evidence of anything.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [September 24, 2010, 4:41am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/126 "2010-09-24T04:41:05Z")
You are really confusing the concepts here, **Mozart1220** , which is making it difficult.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 24, 2010, 11:27am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/127 "2010-09-24T11:27:35Z")
> [@Mozart1220](#):
>
> Weed in the window is evidence of a crime (though a stupid thing to be illegal)
>
> Driving my car anywhere is no evidence of anything.
And the man in this case isn’t being charged with driving his car anywhere.
The reason “weed seen through the window” was mentioned, **Mozart1220** , was to highlight the idea that even though your home is generally private, if a cop can stand in a public place and see evidence of a crime, that evidence is admissible against you. If that same cop were to sneak inside your house and only then saw the weed, it would not be admissible against you.
By the same token, your car is parked on the street, or on the driveway visible from the street. And so _the location of your car_ is public. You can’t complain if the police use _the location of your car_ as evidence of a crime, because as long as your car is driving around on public streets where anyone can see it, you can’t say that the car’s location is private.
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### Author:  [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)
#### Post date: [September 24, 2010, 12:17pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/128 "2010-09-24T12:17:30Z")
> [@Bricker](#):
>
> By the same token, your car is parked on the street, or on the driveway visible from the street. And so _the location of your car_ is public. You can’t complain if the police use _the location of your car_ as evidence of a crime, because as long as your car is driving around on public streets where anyone can see it, you can’t say that the car’s location is private.
And if a cop wants to follow me around and visually note the location of my vehicle, that is admissable. But a line is crossed when the cop attaches something, anything, to my vehicle. He has no probable cause at that time, so he is violating my personal property by the mere act of attaching the tracking device. Is there no limit to what cops can attach to your car in order to monitor your activities? Can they install a webcam? After all, it is just transmitting what is plainly visible through the windows.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 24, 2010, 1:08pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/129 "2010-09-24T13:08:27Z")
> [@Fear\_Itself](#):
>
> And if a cop wants to follow me around and visually note the location of my vehicle, that is admissable. But a line is crossed when the cop attaches something, anything, to my vehicle. He has no probable cause at that time, so he is violating my personal property by the mere act of attaching the tracking device.
There’s a problem with your argument, and that is that the courts don’t agree with you.
[ul][li]US v. Garcia, 474 F.3d 994, 997 (7th Cir.), cert. denied, 128 US 291 (2007)[/li][li]US v. Marquez, 605 F.3d 604 (8th Cir. 2010)[/li][li]US v. Pineda-Moreno, 591 F.3d 1212 (9th Cir. 2010)[/li][li]US v. McIver, 186 F.3d 1119 (9th Cir. 1999), cert. denied, 528 U.S. 1177 (2000)[/li][/ul]
Some state courts have thrown out the information generated by the GPS (People v. Weaver, 12 NY 3d 433 (NY Court of Appeals 2009), State v. Jackson, 76 P. 3d 217 (Wash. 2003)) but none has done so because any personal property was “violated.”
> [@](#):
>
> Is there no limit to what cops can attach to your car in order to monitor your activities? Can they install a webcam? After all, it is just transmitting what is plainly visible through the windows.
But if you’re driving down the highway at 55, a webcam can see much more of your car than anyone driving beside you could see. So I would say no.
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### Author:  [@Kevbo](https://boards.straightdope.com/u/Kevbo)
#### Post date: [September 24, 2010, 1:17pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/130 "2010-09-24T13:17:33Z")
I don’t think the theory is bad. A pretty girl out in public can expect me to see her. No harm, no foul. If I’m there every time she leaves her house, however, that is stalking.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 24, 2010, 1:43pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/131 "2010-09-24T13:43:05Z")
> [@Kevbo](#):
>
> I don’t think the theory is bad. A pretty girl out in public can expect me to see her. No harm, no foul. If I’m there every time she leaves her house, however, that is stalking.
Well, that’s exactly what the DC Circuit’s panel said. And I agree that it’s not crazy. It’s just new.
And therefore not to be trusted. 😃
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### Author:  [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)
#### Post date: [September 24, 2010, 1:56pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/132 "2010-09-24T13:56:32Z")
> [@Bricker](#):
>
> > [@Fear\_Itself](#):
> >
> > Is there no limit to what cops can attach to your car in order to monitor your activities? Can they install a webcam? After all, it is just transmitting what is plainly visible through the windows.
>
> But if you’re driving down the highway at 55, a webcam can see much more of your car than anyone driving beside you could see. So I would say no.
Your “driving at 55” standard is unrealistically narrow. If probable cause attaches when a cop looks into a parked car and sees evidence of a crime, by the courts standard, installing a webcam sees no more than a foot cop on the beat.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 24, 2010, 3:38pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/133 "2010-09-24T15:38:54Z")
> [@Fear\_Itself](#):
>
> Your “driving at 55” standard is unrealistically narrow. If probable cause attaches when a cop looks into a parked car and sees evidence of a crime, by the courts standard, installing a webcam sees no more than a foot cop on the beat.
The courts have generally agreed that a GPS’s evidence would be inadmissible if the car entered a large tract of private land. So there’s the analogy to the webcam. A webcam that captured what could be seen from outside the car _while the car was at rest_ would probably be permissible. But when the car was at highway speeds, no beat cop could possibly look inside it in any great detail.
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### Author:  [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)
#### Post date: [September 24, 2010, 4:10pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/134 "2010-09-24T16:10:49Z")
> [@Bricker](#):
>
> A webcam that captured what could be seen from outside the car _while the car was at rest_ would probably be permissible.
So just to be crystal clear, it would be permissable for the court to allow the placement of a webcam in my car, without probable cause, for the purpose of collecting video evidence while the car is at rest?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 24, 2010, 4:16pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/135 "2010-09-24T16:16:18Z")
> [@Fear\_Itself](#):
>
> > [@Bricker](#):
> >
> > A webcam that captured what could be seen from outside the car _while the car was at rest_ would probably be permissible.
>
> So just to be crystal clear, it would be permissable for the court to allow the placement of a webcam in my car, without probable cause, for the purpose of collecting video evidence while the car is at rest?
As long as the webcam saw only what could be seen from outside the car? I can’t think of a constitutional bar to that, no.
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### Author:  [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)
#### Post date: [September 24, 2010, 5:23pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/136 "2010-09-24T17:23:49Z")
> [@Bricker](#):
>
> > [@Fear\_Itself](#):
> >
> > So just to be crystal clear, it would be permissable for the court to allow the placement of a webcam in my car, without probable cause, for the purpose of collecting video evidence while the car is at rest?
>
> As long as the webcam saw only what could be seen from outside the car? I can’t think of a constitutional bar to that, no.
That will come as a shock to horny teenagers everywhere, I am sure.
But seriously, if that is the case, then I support the DC Circuit Court, and I hope it goes to the Supreme Court so a binding precedent is set. We need a broader definition of privacy to limit the power of government to peer into our backseats with every new technology that comes along. I support this kind of judicial activism. The Constitution is not a suicide pact.
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### Author:  [@The\_Second\_Stone](https://boards.straightdope.com/u/The_Second_Stone)
#### Post date: [September 24, 2010, 5:44pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/137 "2010-09-24T17:44:00Z")
Can the government follow you around without a warrant? Yes. Can they follow you into your home without a warrant? No. They may not introduce a bug to your home without a warrant. Assuming that your car is your home or you park it in your garage, they are trespassing unless they have a warrant.
The OP’s question is: does the constitution address this? No, it does not have a discussion of bugs and trespassing. It has some general rules in the 4th amendment that require interpretation by courts. The OP implies that without a specific prohibition, it’s okay. No. The constitution was designed to be interpreted by courts and not a document designed to be strictly construed by the text, which is general in nature. While it is debated whether the legislature or courts were originally supposed to interpret the constitution with the final word, since Marbury v. Madison the country has agreed that the courts have the final word.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [September 24, 2010, 5:59pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/138 "2010-09-24T17:59:50Z")
> [@Fear\_Itself](#):
>
> But seriously, if that is the case, then I support the DC Circuit Court, and I hope it goes to the Supreme Court so a binding precedent is set. We need a broader definition of privacy to limit the power of government to peer into our backseats with every new technology that comes along. I support this kind of judicial activism. The Constitution is not a suicide pact.
This isn’t really judicial activism; it’s more akin to a question of first impression. The idea is a novel one: any single trip is public and unobjectionable; the total picture painted by _all_ trips is (or should be) private. This isn’t a case of deciding contrary to existing law so much as it is making new law in the absence of any binding precedent.
It’s true that DC’s decision cuts against every other circuit to consider the issue, but so what? Decisions of sister circuits are persuasive but not binding.
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### Author:  [@Fear\_Itself](https://boards.straightdope.com/u/Fear_Itself)
#### Post date: [September 24, 2010, 6:12pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/139 "2010-09-24T18:12:24Z")
> [@Bricker](#):
>
> The idea is a novel one: any single trip is public and unobjectionable; the total picture painted by _all_ trips is (or should be) private.
This is not the privacy issue I find most egregious. If the cops want to follow me around and compile that total picture of all my trips, that is not a violation of my constitutional rights. Despite all your legal precendents, I disagree with the courts when they rule that police can place an electronic monotoring device of any kind on my vehicle without probable cause. The courts decided wrongly. If the courts cannot find a constitutional basis on which to block such intrusive surveillance, then legislation or amending the Constitution is called for.
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### Author:  [@Hamlet](https://boards.straightdope.com/u/Hamlet)
#### Post date: [September 24, 2010, 6:29pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/140 "2010-09-24T18:29:34Z")
> [@Fear\_Itself](#):
>
> This is not the privacy issue I find most egregious. If the cops want to follow me around and compile that total picture of all my trips, that is not a violation of my constitutional rights. Despite all your legal precendents, I disagree with the courts when they rule that police can place an electronic monotoring device of any kind on my vehicle without probable cause. The courts decided wrongly. If the courts cannot find a constitutional basis on which to block such intrusive surveillance, then legislation or amending the Constitution is called for.
“We conclude that a warrant was required here because the initial installation of the particular device clearly constituted a seizure under art. 14. The installation required not only entry by the police into the minivan for one hour, but also operation of the vehicle’s electrical system, in order to attach the device to the vehicle’s power source and to verify that it was operating properly. Moreover, operation of the device required power from the defendant’s vehicle, an ongoing physical intrusion. See Karo, supra at 729 (Stevens, J., dissenting) (insertion of beeper in vehicle is physical invasion and seizure because it infringes on owner’s exclusionary right).”
“In addition, and apart from the installation of the GPS device, the police use of the defendant’s minivan to conduct GPS monitoring for their own purposes constituted a seizure. When an electronic surveillance device is installed in a motor vehicle, be it a beeper, radio transmitter, or GPS device, the government’s control and use of the defendant’s vehicle to track its movements interferes with the defendant’s interest in the vehicle notwithstanding that he maintains possession of it. The owner of property has a right to exclude it from “all the world,” see Karo, supra at 729 (Stevens, J., dissenting), and the police use “infringes that exclusionary right.” Id. The interference occurs regardless whether the device draws power from the vehicle and regardless whether the data is transmitted to a monitoring computer. It is a seizure not by virtue of the technology employed, but because the police use private property (the vehicle) to obtain information for their own purposes.”
As stated, in gathering and using the GPS data by means of the minivan, the police used the defendant’s minivan for government purposes, and did so without the defendant’s knowledge or authorization. Tracking of the GPS data by the police constituted use and control of the defendant’s minivan by them, and interfered with the defendant’s right to exclude others from his vehicle."
Commonwealth v. Connolly, 454 Mass. 808.
The Massachusettes Supreme Court agrees with you, at least in regards to the Mass. Constitution.
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