These cases all deal with activities that are otherwise legal. In other words, its not against the law for me to observe someone, and likely not for me and 20 of my friends to do so. However, it is definitely illegal for me to place a GPS receiver on someones car without their permission. I don’t know any of any cases offhand to support myself, but surely if the police are going to be breaking the law they should have a warrant.
Not sure where I stand on the 4th Amendment question, but something to keep in mind is that the modern ability to analyze gobs of data - and the sheer amount of publicly available data - has grown exponentially of late. If someone were to gather up all publicly available data about anyone here and amalgamate and collate it, and then post it - well, I expect the post would be disappeared and the poster banned before many people saw it, but I also expect it would been seen as frightfully invasive of the person’s privacy.
IMO this is one of those cases where the original meaning or intent of the text of the Constitution has become almost useless, as it’s addressing a world radically unlike our own. I don’t envy judges the task of making consistent decisions in this area.
I contend that the original intent remains as useful and relevant as ever, but is widely misunderstood. The Constitution was not intended to be static. It was meant to be a living document–but not in the way that expression is usually used in recent times. No, the Framers planned and expected that the text would be changed (by a prescribed procedure) to fit our developing needs.
So you’re saying that the original intent was that by now there’d be a 93rd Amendment that updates the protections originally found in the 4th and modified in the 32nd and 77th? Perhaps, but that doesn’t make the original intent and meaning of the 4th Amendment any easier to apply to the modern world, and the 4th is all the judiciary has to work with.
Let’s include one more thing…
Bear with me.
A car is private property, right?
A house is also private property. Why couldn’t “they” secretly plant a camera in your house too?
Privacy and whatever requirements there are for taps and warrants?
I don’t know, but to me it seems like a fair comparison. They planted a “surveillance device” on an item of private property (the car) in order to continuously monitor someone, and did it without a warrant. If they can do it to your car, then why not your house or your person?
I have a question about this. What about observing someone while they are on private property? If your are under surveillance and walk inside your house, can the police monitor your movements inside your house without a warrant when the shades are closed? Or if you own a large amount of land, can they monitor your movements on the land even if it is not visible from a public space (think big ranch)?
Slee
The Supreme Court said it was reasonable to stick a tracking device into a (presumably ill-gotten) drum of chloroform. It didn’t say it was okay to attach it directly to a vehicle.
I think that the difference is in your expectation of privacy. Inside your home you rightfully expect things to remain private.
Where you travel in your car, however, is usually open to public view. Either from neighbors watching you leave or from the cars behind and in front of you.
If your wife’s friend sees you pull into an adult bookstore parking lot, she didn’t do anything wrong. She was out and about in public and you have to expect that others might see you in public areas.
Where I think this case is different is that this isn’t a one-off or a random observation. It is a deliberate and constant effort to track everywhere that a person goes in a given month. I tend to agree that the totality of the surveillance makes it more of a privacy violation than simply saying that these activities were being done in public.
Read the case.
Especially in view of the fact that you’re starting law school.
The chloroform was not ill-gotten.
And the opinion quotes Katz extensively:
This is significant, because Katz, a case about wiretapping a phone booth, overruled the previously seminal opinion on the subject, Olmstead v. United States, 277 U.S. 438 (1928), which held a warrentless telephone wiretap of a private telephone line was legal because it was made without physical trespass. Katz created the “reasonable expectation of privacy” rule. From Katz forward, it’s not relevant how the government got the information, but simply whether the person in question has a reasonable expectation of privacy:
In other words, for Fourth Amendment purposes, there does not appear to be any case law that relies upon the distinction you offer up here.
May I ask what cases you were relying upon?
As Justice Stewart said in Katz:
Adopting that sound approach, the framers’ views on GPS become irrelevant. As they should be. What is relevant is what sorts of government intrusion is prohibited. We may, as a society, desire to limit ourselves further, and we may adopt laws or even Constitutional amendments to address the perceived deficits.
We should not ask our court to fashion, willy-nilly, another patch to the crazyquilt.
I think that this cite (provided by Bricker) justifies this Court decision. I have no expectation of privacy in a one-off trip to the grocery store, bar, strip club, or church. Anyone may or may not see me coming or going, and as I am using the public roads, I accept that this may happen.
But, I would think that in the totality of my movements over the course of a month, I would have a reasonable expectation that this information as a whole would remain private. It is surely reasonable to surmise that nobody is following me constantly and tracking my movements.
As the cite said, the fourth amendment protects persons, not places.
According to Bricker’s own theory of how to determine if something is constitutional or not - the court ruled correctly because their ruling agrees with their ruling. They’ll become incorrect if overturned by a higher court, but correct again if affirmed.
After all, nothing can be said to be constitutional or unconstitutional except as a judge makes it so.
Out in the real world, though, I agree with the court’s reasoning. Plus, a GPS device for a month is distinct from police following you for a month - You have a reasonable chance to notice them following you, after all. So it’s sort of like a wiretap vs. trying to arrange to be in the room whenever the suspect makes a phone call. Some places, you can’t follow.
So go back to my earlier hypothetical: the FBI becomes convinced you’re part of a conspiracy to commit mopery, but have no hard evidence. So they decide to commit a team of 75 agents to you for a month, with 35 cars used so you don’t notice the same ones following you every day, three helicopters to coordinate the car surveillance, and round-the-clock watchdog efforts directed at recording your every public move.
Does this violate the Fourth Amendment?
Why does it seem unreasonable to you? If you have no expectation of privacy when it comes to the destinations you travel to in public, then how is disclosure of this information made unreasonable by the use of a tracking device?
How exactly is this an invasion of any privacy? It really does not make sense to think one has a privacy interest for what they do in public and no accumulation of things done in public makes the nth one private, such that there then occurs an invasion of privacy on the nth occurrence.
Perhaps, but not for purposes of the 4th Amendment, which is what we are discussing after all.
While you may not reasonably expect any one to monitor all your driving trips for a month, all of them still occur in public, viewable by the public, and capable of being viewed by any one particular individual in public, whether it is one or all of them.
There is not a “reasonable expectation of privacy” of driving your vehicle in public and the destinations you visit in public, whether it is one day or 100 straight days. The number of days does not change the fact it is done in public, visible to and from the public, and anyone person in the public.
As I noted above, either the “mosaic” concept (the totality of a large number of pieces of information is a new and distinct piece of information in itself) is valid, or it is not.
If it is valid, then this sort of surveillance, clearly intended to discover this new and distinct piece of information (which is of a type not susceptible to casual public view, and only ascertainable via extraordinary measures analogous to the use of infrared scanning equipment in the abovereferenced Kyllo case) falls under Fourth Amendment scrutiny.
If it is not valid, then the existing system of government secrecy gets a hole blown in it that makes the Wikileaks incident look like something deserving of – if one is being draconian about it – a stern finger-wagging lecture and an early bedtime sans dessert.
I ask again: why? You continue to assert, as something everyone simply knows, that the concept is valid, or it’s not.
Why can’t the concept be valid when measuring our decision to disclose information or keep it classified, but not a concept that’s embodied by the Fourth Amendment? What makes it automatically applicable to both or neither?
Where does a “reasonable expectation of privacy” come from, to you? Wouldn’t the reasonable expectations of the average person be a part of the calculus? If people think they have an expectation that they won’t be surveilled for a month, does that not have any influence on whether or not there exists an expectation of privacy. And that acceptance, does it have anything to do with how reasonable that belief is? Especially in light of newer technology?
How about in California, where they have enacted a law that makes it a crime to attach a GPS to someone’s car without their knowledge? Where that law stated: “electronic tracking of a person‘s location without that person‘s knowledge violates that person‘s reasonable expectation of privacy”. Wouldn’t a statement like that from the legislature effect what is a “reasonable expectation of privacy” is?
I think the term “reasonable expectation of privacy” is certainly a malleable term, that by its nature has to change with new technology and new reactions by people to that technology.
None of this means I buy the court’s argument. I just think the whole issue is a lot more nuanced than it is given credit for in this thread.
Kyllo.
We had a similar case up here in CT regarding GPS tracking of a car that I was watching pretty closely. This issue was, imho, always on the grey area of the 4th. The Knotts case wasn’t really ever exactly on-point because in that one (if I recall correctly) the government arranged with a 3rd party to supply the guy with the chemicals with the GPS in it. Sort of like the unreliable ear doctrine, if you are going to carry around something from someone else, you don’t really have much of expectation of privacy in it. To me that is very different than the govt. hiding a GPS tracker under my bumper or in my wheelwell. I thin the average person would feel that their privacy had been infringed on if anyone was mucking around on the underside of their car.