Barely more than 24 hours after writing about my opposition to government invasions of privacy, I learned yesterday about a case going before the Supreme Court to determine if police need a warrant to place a GPS tracking device on your car:
In 2004, a joint FBI-Washington, D.C., Metropolitan Police task force began investigating suspected drug kingpin Antoine Jones. First they got a warrant and wiretapped him, but Jones was careful about how he spoke on the phone. So then they put a GPS tracking device on his car, and for 28 days, every time that car moved, its location was tracked by satellite, with the information sent every 10 seconds to the FBI. The tracking led to Jones’ arrest, plus the seizure of 97 kilos of cocaine and $850,000 at a stash house.
Jones was convicted of conspiracy to distribute drugs, but a panel of conservative and liberal judges on the U.S. Court of Appeals in Washington unanimously threw out the conviction because the tracking device had been attached without a warrant. The court said that tracking a car for such a long period without court authorization violates the Fourth Amendment’s ban on unreasonable searches.
Orin Kerr has a good post on Volokh reflecting on the arguments and the judicial responses from the courthouse yesterday, and there’s a lot of discussion in both the post and the comments about the different angles of unreasonable “search” and “seizure,” and whether or not we want the government tracking citizens like that regardless.
I had a few immediate reactions:
1. First, it sounds like the government is arguing that they should be able to place GPS tracking devices on a car without a warrant because the car is driving on public roads, and there is no expectation of privacy in public spaces. But what about when the car is in your private driveway? Or any private lot, for that matter?
2. Secondly, this case is from 2004; it’s over seven years old. I understand that cases can take a long time to get to the Supreme Court, and for a case involving privacy, seven years is a very long time. How many other vehicles have had tracking devices placed on them since then? (more on that in a sec) But for a case involving technology, seven years is almost an eternity. Has anything been invented since 2004 that makes GPS tracking devices on cars obsolete? By the time the Supreme Court finalizes a decision about this, will it already be irrelevant because citizens have an easy way to neutralize these devices and/or because police have an easy way to track a vehicle’s movements without putting a device on it in the first place?
3. Thirdly, and most important of all, this invasion of privacy is just another example of a consequence of the drug war. It’s basically impossible to completely prevent people from using illegal drugs, but the government is determined to do so, and the only way to do that is to keep marching into the privacies of innocent people.
This is an incredibly important reason for conservatives to consider opposing the war on drugs. The tenacious folks at Classical Values are relentless at pointing out the endless ways the government takes on new and abusive powers under the guise of controlling the drug trade. Previously we had the TSA bringing drug-sniffing dogs to Tennessee vehicle checkpoints that were supposedly trying to prevent terrorism. Now we have the government putting tracking devices on vehicles to try to catch a “suspected drug kingpin.” In the Supreme Court case example, they found evidence against the guy. But I wondered about other examples…
Then a commenter on the Volokh post linked to a Wired article about a man who found two Fed-placed GPS trackers on his SUV:
The young man, who asked to be identified only as Greg, is one among an increasing number of U.S. citizens who are finding themselves tracked with the high-tech devices.
The Justice Department has said that law enforcement agents employ GPS as a crime-fighting tool with “great frequency,” and GPS retailers have told Wired that they’ve sold thousands of the devices to the feds.
If you keep reading:
Greg’s surveillance… most likely involves a criminal drug investigation centered around his cousin, a Mexican citizen who fled across the border to that country a year ago and may have been involved in the drug trade as a dealer.
“He took off. I think he was fleeing. I think he committed a crime,” Greg told Wired.com, asserting that he himself is not involved in drugs.
Greg says he bought the SUV from his cousin in June, paying cash for it to a family member. He examined the car at the time and found no tracking device on it. A month later, he drove his cousin’s wife to Tijuana. Greg says he remained in Mexico a couple of days before returning to the U.S.
And there it is again with the drugs! You don’t have to be a suspected kingpin anymore. If you’re just related to anyone that may be a drug dealer the cops may decide they want to track your movements and slip a device on your vehicle without your knowledge and no further accountability. (If you’re still thinking, “I have nothing to hide and I don’t care if the cops track me and learn that I go to church every Sunday,” why don’t you just give them the keys to your house to come in any time they want? Even if you’re innocent, there are costs of inconvenience and potentials for abuse.)
I’m generally a social conservative. I’ve never used illegal drugs and I have no desire to. I think most of them are harmful and dangerous and I wish nobody had an addiction to them or felt the need to use them. Now I’ve started to believe that the government doesn’t have the right to stop people from hurting themselves. But even if you think that the government should do this for their own good, I challenge you to consider that the government simply can’t do this. I don’t know where to get illegal drugs if I wanted to, but I know that it wouldn’t be too hard to find out; the government’s war on drugs has done little to restrict their demand or supply. But as long as the government refuses to admit that it can’t completely prevent people from buying and selling things they want to buy and sell, the government will continue to invade our privacy as it tries. And as long as conservatives refuse to admit it, the government will continue to have the power to do so. We’re really not too far away from the government wanting house keys to do random basement inspections. After all, if you have nothing to hide…
While I certainly don’t think government should be able to track people by GPS (even with a warrant, month-long tracking of someone’s every movement is kinda creepy), I don’t think this necessarily reflects on the drug war specifically. Suppose all drugs were legalized tomorrow; don’t you think the government would continue using warrantless GPS tracking for other crimes?
As a sidenote, I’m kind of amazed that seven years ago they had a transmitter with a battery that lasted 28 days.
Good point.. I dont think ending the drug war would end the demand for these kind of privacy infringements. But it does seem like the drug war is heavily involved in increasing the demand for these things and pushing their boundaries, as is expected due to the inherent difficulty of enforcing such victimless crimes.
While I certainly don’t think government should be able to track people by GPS (even with a warrant, month-long tracking of someone’s every movement is kinda creepy), I don’t think this necessarily reflects on the drug war specifically. Suppose all drugs were legalized tomorrow; don’t you think the government would continue using warrantless GPS tracking for other crimes?
As a sidenote, I’m kind of amazed that seven years ago they had a transmitter with a battery that lasted 28 days.
Good point.. I dont think ending the drug war would end the demand for these kind of privacy infringements. But it does seem like the drug war is heavily involved in increasing the demand for these things and pushing their boundaries, as is expected due to the inherent difficulty of enforcing such victimless crimes.