May 15, 2009

NYTimes Editorial on GPS Surveillance [10:21 am]

GPS and Privacy Rights (pdf)

The police generally need a search warrant to enter a person’s home or to listen to phone calls. But courts have been divided on whether the police must obtain a warrant before placing a GPS device on a car. New York State’s highest court ruled this week (local copy) that they do, an important victory for privacy rights.

The opinion includes this discussion of the perils of surveillance technologies and privacy:

Constant, relentless tracking of anything is now not merely possible but entirely practicable, indeed much more practicable than the surveillance conducted in Knotts. GPS is not a mere enhancement of human sensory capacity, it facilitates a new technological perception of the world in which the situation of any object may be followed and exhaustively recorded over, in most cases, a practically unlimited period. [...]

That such a surrogate technological deployment is not — particularly when placed at the unsupervised discretion of agents of the state “engaged in the often competitive enterprise of ferreting out crime” (Johnson v United States, 333 US 10, 14 [1948]) — compatible with any reasonable notion of personal privacy or ordered liberty would appear to us obvious. One need only consider what the police may learn, practically effortlessly, from planting a single device. The whole of a person’s progress through the world, into both public and private spatial spheres, can be charted and recorded over lengthy periods possibly limited only by the need to change the transmitting unit’s batteries. Disclosed in the data retrieved from the transmitting unit, nearly instantaneously with the press of a button on the highly portable receiving unit, will be trips the indisputably private nature of which takes little imagination to conjure: trips to the psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense attorney, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on. What the technology yields and records with breathtaking quality and quantity, is a highly detailed profile, not simply of where we go, but by easy inference, of our associations — political, religious, amicable and amorous, to name only a few — and of the pattern of our professional and avocational pursuits. When multiple GPS devices are utilized, even more precisely resolved inferences about our activities are possible. And, with GPS becoming an increasingly routine feature in cars and cell phones, it will be possible to tell from the technology with ever increasing precision who we are and are not with, when we are and are not with them, and what we do and do not carry on our persons — to mention just a few of the highly feasible empirical configurations.

Sound like any other environment?? The opinion makes the following sweeping, and certainly controversial, assertion:

Indeed, contemporary technology projects our private activities into public space as never before. Cell technology has moved presumptively private phone conversation from the enclosure of Katz’s phone booth to the open sidewalk and the car, and the advent of portable computing devices has re-situated transactions of all kinds to relatively public spaces. It is fair to say, and we think consistent with prevalent social views, that this change in venue has not been accompanied by any dramatic diminution in the socially reasonable expectation that our communications and transactions will remain to a large extent private.

This certainly isn’t going to be the last of this, but the language is something to read. The opinion is not unanimous, and the dissent is equally eloquent in its argument:

The theory that some investigative tools are simply too good to be used without a warrant finds no support in any authority interpreting the Federal or New York Constitution. Knotts, despite the majority’s attempt to distinguish it, seems to me to establish conclusively that the Fourth Amendment did not prohibit the police “from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them” (460 US at 282).

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