# 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:** 9
### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 8, 2011, 5:25pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/161 "2011-07-08T17:25:36Z")
> [@Whack-a-Mole](#):
>
> Sorry to revive this but now at least one court has said it is fine to track your spouse with GPS. Whether you could track a person you are not married to (e.g. your boyfriend/girlfriend) I am unsure but the little the article tells suggests the court thinks tracking you on public streets is fine.
In the case of any threatening behavior in association with this, a stalking problem would arise.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 8, 2011, 5:35pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/162 "2011-07-08T17:35:51Z")
> [@Really\_Not\_All\_That\_Bright](#):
>
> Do you believe a wiretap constitutes either a “search” or a “seizure”?
Yes, it’s a search. As _Katz_ explains:
> [@](#):
>
> What a person knowingly exposes to the public, even in his own home or office, is not a subject of Fourth Amendment protection. But what he seeks to preserve as private, even in an area accessible to the public, may be constitutionally protected.
A wiretap invades phone conversations, in which society is prepared to recognize a reasonable expectation of privacy.
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### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [July 8, 2011, 5:57pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/163 "2011-07-08T17:57:19Z")
> [@Mach Tuck](#):
>
> The police affixed a GPS device to his car. .
What if instead of a government agent, a private individual had affixed the device (a journalist, for instance, or a private investigator hired by his former spouse…)
Would this lack of expectation of privacy apply too, making such a tracking lawful?
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 8, 2011, 6:01pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/164 "2011-07-08T18:01:59Z")
> [@David42](#):
>
> I do believe there is a fifth amendment taking of property problem here. Someone has to pay to haul around the tracking device. However miniscule it is, however inexpensive, the device is added weight to the car, which will result in increased gasoline usage and increased wear and tear on the car.
>
> I do not think that the government can convert the use of the defendant’s property to their use without a warrrant.
I notice you don’t support your belief with any citations to case law.
That’s unfortuante, because the issue you raise has been dealt with before.
In US v. Garcia, 474 F.3d 994, 997 (7th Cir.), cert. denied, 128 US 291 (2007):
> [@](#):
>
> The police placed a GPS (global positioning system) “memory tracking unit” underneath the rear bumper of the Ford. Such a device, pocket-sized, battery-operated, commercially available for a couple of hundred dollars (see, e.g., Vehicle-Tracking, Incorporated, “GPS Vehicle Tracking with the Tracking Key,” www.vehicle-tracking. com/products/Tracking — Key.html, visited Jan. 21, 2007), receives and stores satellite signals that indicate the device’s location. So when the police later retrieved the device (presumably when the car was parked on a public street, as the defendant does not argue that the retrieval involved a trespass), they were able to learn the car’s travel history since the installation of the device. One thing they learned was that the car had been traveling to a large tract of land. The officers obtained the consent of the tract’s owner to search it and they did so and discovered equipment and materials used in the manufacture of meth. While the police were on the property, the defendant arrived in a car that the police searched, finding additional evidence.
And the accused raised a challenge similar to what you enunciate above, and the court shot it down:
> [@](#):
>
> The defendant’s contention that by attaching the memory tracking device the police seized his car is untenable. The device did not affect the car’s driving qualities, did not draw power from the car’s engine or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car’s appearance, and in short did not “seize” the car in any intelligible sense of the word.
Also see:
[ul]
[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]
What cases were you relying upon in your analysis?
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### Author:  [@clairobscur](https://boards.straightdope.com/u/clairobscur)
#### Post date: [July 8, 2011, 6:09pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/165 "2011-07-08T18:09:42Z")
Please ignore my previous post, since the question I asked was presicely the issue discussed in the most recent posts.
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### Author:  [@Whack-a-Mole](https://boards.straightdope.com/u/Whack-a-Mole)
#### Post date: [July 8, 2011, 8:03pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/166 "2011-07-08T20:03:59Z")
Does no one else here see similarities to George Orwell’s 1984 here?
Pervasive government surveillance anyone?
_“The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated…”_
Seems to me my car counts as one of my “effects” and the government is searching for me which is about as personal as it gets.
The courts may not agree with me but in my view it is super creepy to think the government can track me as it likes on nothing more than a whim. Maybe they can put an RFID in my clothes. It wouldn’t affect my walking ability or take up any space I would use or draw power from me. Wouldn’t even alter how I look.
So, why not RFIDs on everyone? As long as scanners for RFIDs are only in public areas you have no expectation of privacy right?
Is this really where we want to go with this as a society?
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [July 8, 2011, 8:09pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/167 "2011-07-08T20:09:14Z")
The difference is, **Whack-a-Mole** , the constitution doesn’t protect us from all infringements by the government. It seems that you are saying that because the government putting RFID chips in our clothing would be bad (which I agree), it is therefore unconstitutional (which it may or may not be).
I’d agree with you that allowing the police to surreptitiously put tracking devices on cars without a warrant is a bad thing. But I don’t know if it is unconstitutional. Hopefully, if the Court determines it is permissible the legislature will deal with that.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 8, 2011, 10:12pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/168 "2011-07-08T22:12:00Z")
> [@Sage\_Rat](#):
>
> Er…your rights have been expanding with time, as **MikeF** ’s post demonstrates.
I’d say they have expanded in some areas while they’ve been chipped at in other areas.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 8, 2011, 10:17pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/169 "2011-07-08T22:17:36Z")
> [@Richard\_Parker](#):
>
> 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?
I see no reason it should not be covered either as part of our right to life or liberty or property in the sense of four walls to hide your nakedness. I could also argue the right to privacy from a 9th amendment or 10th amendment viewpoint, too.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 8, 2011, 10:26pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/170 "2011-07-08T22:26:36Z")
> [@Bricker](#):
>
> I notice you don’t support your belief with any citations to case law.
>
> That’s unfortuante, because the issue you raise has been dealt with before.
>
> In US v. Garcia, 474 F.3d 994, 997 (7th Cir.), cert. denied, 128 US 291 (2007):
>
> And the accused raised a challenge similar to what you enunciate above, and the court shot it down:
>
> Also see:
>
> [ul]
> [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]
>
> What cases were you relying upon in your analysis?
It is my opinion. Obviously I disagree with the S.Ct. and I never claimed it violated any of their caselaw or that they also share my opinion.
But they are illogical.
You say the court explained its ruling:
"The defendant’s contention that by attaching the memory tracking device the police seized his car is untenable. The device did not affect the car’s driving qualities, _ **did not draw power from the car’s engine** _ or battery, did not take up room that might otherwise have been occupied by passengers or packages, did not even alter the car’s appearance, and in short did not “seize” the car in any intelligible sense of the word. "
emphasis mine.
Well, if the energy for the GPS unit moving down the road did not come from the car’s engine, exactly where did it come from?
If anyone else thought I was claiming a precedent, I hope this clarification helps. I’m not saying the S.Ct. agrees with me, but that they were wrong in their logic in this case. But having read many many of their cases, it’s my opinion many of them utterly defy logic.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 8, 2011, 10:51pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/171 "2011-07-08T22:51:48Z")
> [@Bricker](#):
>
> Every federal circuit in the country agrees with you, except DC. DC’s theory is that any single individual trip is fair game, but the total picture created by assembling information about all your trips in a month is not. Thus, “mosaic theory of privacy.” The individual piece of a mosaic is a chip of colored glass. But the full mosaic is a depiction of, say, the transfiguration of Jesus. Knowing the chip of colored glass is very different than knowing what a couple thousand of them, arranged in a particular way, represent.
And that’s the difference in the mosaic theory. I do expect for Joe Blow out on the corner to see me drive past. I do not expect Joe Blow to follow me everywhere I go and learn all kinds of stuff about me. If I find out someone is following me, my behavior changes (confrontation or calling the police) and I think most people would also change their behavior when they learn they are being followed.
The probability of most people changing their behavior when they learn they are being followed in public speaks volumes to what the expectation of privacy in public is. Most of us would not tolerate it and would stop going about our business until the problem is solved. I am sure most of us think it is fine when someone sees us go by in passing–but someone who wants to know everything about what we are doing when we step out of doors is told to get lost.
I agree with the D.C. court’s opinion.
Disclaimer: I haven’t read the D.C. court’s opinion but assume other posters’ descriptions are accurate.
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### Author:  [@villa](https://boards.straightdope.com/u/villa)
#### Post date: [July 8, 2011, 11:00pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/172 "2011-07-08T23:00:15Z")
> [@David42](#):
>
> Well, if the energy for the GPS unit moving down the road did not come from the car’s engine, exactly where did it come from?
That’s not what it means by drawing power. The court is (pretty clearly) referring to the power source for the operation of the GPS unit, which, presumably, was internal batteries.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 8, 2011, 11:36pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/173 "2011-07-08T23:36:34Z")
> [@David42](#):
>
> Well, if the energy for the GPS unit moving down the road did not come from the car’s engine, exactly where did it come from?
Do you know what the phrase _de minimis_ refers to?
Do you have an estimate about how much additional gas is used in a month of toting around a six-ounce item attached to the bumper?
Can you quantify the extra wear and tear inflicted on the car?
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### Author:  [@Sitnam](https://boards.straightdope.com/u/Sitnam)
#### Post date: [July 8, 2011, 11:50pm UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/174 "2011-07-08T23:50:10Z")
Would this have been legal if the police were merely tailing him?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 9, 2011, 1:15am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/175 "2011-07-09T01:15:10Z")
> [@villa](#):
>
> That’s not what it means by drawing power. The court is (pretty clearly) referring to the power source for the operation of the GPS unit, which, presumably, was internal batteries.
You miss my point. here the government has essentially stolen some small amount of gasoline from the defendant, his property becomes theirs to use.
I still disagree with the S.Ct regardless of the source of the power of the GPS.
If the government wants to follow people, they should do so on their own dime.
This is my opinion.
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 9, 2011, 1:21am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/176 "2011-07-09T01:21:09Z")
> [@Bricker](#):
>
> Do you know what the phrase _de minimis_ refers to?
>
> Do you have an estimate about how much additional gas is used in a month of toting around a six-ounce item attached to the bumper?
>
> Can you quantify the extra wear and tear inflicted on the car?
I understand the idea of de minimis. Do you have a suggestion as to just how much gasoline and wear and tear the government is entitled to convert to their own use, especially a level that is not arbitrary, and what justification do you offer for that particular level, if any?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 9, 2011, 1:34am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/177 "2011-07-09T01:34:14Z")
> [@Sitnam](#):
>
> Would this have been legal if the police were merely tailing him?
Yes.
I think a major reason for the interest in using a GPS is that it is far less noticeable than a car that is always behind you.
But this well shows my previous point about expectation of privacy. A person who notices he is being followed alters his behavior. We assume no one follows us around when we go in public, but do not mind if someone sees us here and there.
The only person who doesn’t alter his behavior when being followed is the person running from the police, that I can think of.
In my view this is an end run around the expectation of privacy and quite obviously a knowing end run evidenced by the government’s desire to escape notice.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 9, 2011, 2:10am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/178 "2011-07-09T02:10:58Z")
> [@David42](#):
>
> I understand the idea of de minimis. Do you have a suggestion as to just how much gasoline and wear and tear the government is entitled to convert to their own use, especially a level that is not arbitrary, and what justification do you offer for that particular level, if any?
Your first sentence claims to understand an idea. Your next one demonstrates that you do not.
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### Author:  [@Bricker](https://boards.straightdope.com/u/Bricker)
#### Post date: [July 9, 2011, 2:13am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/179 "2011-07-09T02:13:51Z")
> [@David42](#):
>
> You miss my point. here the government has essentially stolen some small amount of gasoline from the defendant, his property becomes theirs to use.
>
> I still disagree with the S.Ct regardless of the source of the power of the GPS.
>
> If the government wants to follow people, they should do so on their own dime.
>
> This is my opinion.
Let’s test your opinion.
The government agents plant the GPS and then add a cup of gasoline to the car. This is far greater than the gas that will be burned by the transport of an extra six ounces for a month.
Now do you approve?
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### Author:  [@David42](https://boards.straightdope.com/u/David42)
#### Post date: [July 9, 2011, 2:55am UTC](https://boards.straightdope.com/t/oh-good-a-new-constitutional-theory-of-privacy/549942/180 "2011-07-09T02:55:16Z")
> [@Bricker](#):
>
> Let’s test your opinion.
>
> The government agents plant the GPS and then add a cup of gasoline to the car. This is far greater than the gas that will be burned by the transport of an extra six ounces for a month.
>
> Now do you approve?
Seems to me your test involves outright damage to the vehicle. Isn’t a locking gas cap pretty standard these days? I can understand that you may respect property rights and just think that my argument is silly because of no real harm. But your suggestion here leads away from that. I do not recall ever reading of just how little a bit of property is before it is not covered. As a practical matter, property of less value than the cost of the litigation is a cutoff of sorts–but that can vary. Litigation over a $100 claim is cheaper than litigation over a $1,000,000 dollar claim, either civil or criminal. (In criminal, i refer to restitution/fines/estimates of property damge and the like)
Let’s instead have the test involve some payment for the gas and also the wear and tear, unless you can test without presuming further damage to the car, i.e., how to get the gas in without drilling a hole or breaking the cap, as well as covering wear and tear.
_De minimis_ isn’t a criminal or constitutional law doctrine that I ever heard of.
I’m going to ask you for a citation to an example of where it is a doctrine of criminal or constitutional law at the federal level or applicable to all the states.
I think it is associated more in tax and civil matters where actual payment of something occurs to prevent a ridiculous payment from being seriously pursued, for the obvious practical concerns. No judge entertains 1 cent lawsuits, that is, if the 1 cent is the only aim. I’m not talking about awarding a nominal 1 dollar stuff.
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