Last August, the D.C. Circuit Court of Appeals ruled that prolonged GPS tracking of a person’s automobile is a search for Fourth Amendment purposes and thus subject to the warrant requirement.
The Obama Administration’s (increasingly intrusive) DOJ, in its petition for certiorari, argues that there is no reasonable expectation of privacy in movements on public roadways and urges the Supreme Court to overturn the D.C. Circuit.
Those who know me could easily guess my kneejerk reaction to this level of discretionary police intrusion: HELL NO. It is scarily Big Brother-ish, and police don’t know the meaning of restraint. Due to the ease and minimal expense of engaging in this type of surveillance, it would allow the continuous tracking of any person for an unlimited amount of time, based only on some police officer’s “reasonable” suspicion. So it won’t be long before some officer of some law enforcement agency knows the whereabouts of all of us at any given time. (I don’t want anyone knowing how often I eat Taco Bell.)
However, in pondering Fourth Amendment precedent and attempting to ignore the police-phobic voice in my head, I wondered how a court could get around the fact that a person’s movements in their vehicle are openly exposed to the public.
I am new to this blogging thing, but I am pretty sure, based on a wide sampling of other bloggers’ work, that I am allowed to comment (and if need be throw fits) about stuff that I haven’t actually read. Regardless, I read the D.C. Circuit panel’s opinion in U.S. v. Maynard, 615 F.3d 544 (to my chagrin, I’ve been told I should provide citations – pincites, however, are asking a bit much), and learned that they just had to fudge the numbers a little.
Essentially the D.C. panel ruled, with regard to GPS tracking by police, that (1) the whole is greater than the sum of the parts and that (2) some undefined multiple of nothing equals something.
Much of the analysis in this case revolves around the SCOTUS decision in U.S. v. Knotts, 460 U.S. 276. In Knotts, the Court considered the use of a “beeper” (the 1980s’ version of a GPS tracker) to track the movements of a barrel from the place where the defendant purchased it to defendant’s secluded cabin where he cooked meth. The Court held that Knotts’s Fourth Amendment rights were not violated, because he had no reasonable expectation of privacy in his “movements from one place to another” along “public thoroughfares.” Anyone who wanted to look could see where he came from and where he went.
The Court recognized that visual surveillance could have revealed to police the information gleaned from the beeper and held that “nothing in the Fourth Amendment prohibited the police from augmenting the sensory faculties bestowed upon them at birth with such enhancement as science and technology afforded them in this case.” The Court explicitly declined to answer whether prolonged 24-hour surveillance like in Maynard would require a different constitutional analysis, although the broad language of the opinion seems to suggest that it would not.
Presented with SCOTUS’s unanswered question of prolonged surveillance, the Maynard court did apply a different constitutional analysis, based in part on some inventive mathematics.
I. The whole is greater than the sum of the parts:
The court held that the totality of the defendant’s movements in Maynard were not actually exposed to the public because the likelihood that someone would monitor all of the movements over the 28 day monitoring period was “essentially nil.”
Then, although the issue was not raised by the government, the court went on consider whether the movements were “constructively exposed” because clearly each individual trip would fall under the Knotts rule. The court explained that that the whole picture of defendant’s movements over a month is greater than the sum of the parts.
“Prolonged surveillance reveals types of information not revealed by short-term surveillance, such as what a person does repeatedly, what he does not do, and what he does ensemble. These types of information can each reveal more about a person than does any individual trip viewed in isolation. Repeated visits to a church, a gym, a bar, or a bookie tell a story not told by any single visit, as does one‘s not visiting any of these places over the course of a month. The sequence of a person‘s movements can reveal still more; a single trip to a gynecologist‘s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story.”
The math is wrong, but the resulting analysis rings true. Much more information is gained from continuous observation of a person’s public movements than from the observation of a single trip.
II. Some multiple of nothing equals something.
The court is less explicit in its application of this faulty formula. I, on the other hand, will show my work.
SCOTUS found no expectation of privacy in the single trip at issue in Knotts.
Single trip (T) = 0
The D.C. Circuit found a reasonable expectation of privacy in however many (x) trips occurred in the 28-day period at issue in Maynard.
x (T) > 0
Simple math tells us, and the DOJ points out in its cert petition, that there is something wrong with this equation. The court had a gut feeling (like mine) that a line should be drawn somewhere, so it attempted to draw a line. The main problem with the line it drew, was that it did not define x.
The D.C. court repeatedly uses the word “prolonged” for what I have represented with the variable x. “Prolonged” does not really lend itself to principled interpretation or mathematical application. Nowhere does the court say how big x must be to give a person an expectation of privacy, and so courts and police are left for now to fill in x as they see fit. The failure to define the “prolonged” variable is the most obvious problem with the rule laid down in this opinion. Freedom becomes discretionary when police are left with ambiguous guidelines.
The courts look to society to ultimately determine what expectations of privacy are reasonable.
The Maynard court cites several recently-enacted state laws against prolonged warrantless GPS surveillance as evidence of our societal expectation that the totality of our movements deserves some protection. However, there are still forty-something states that do not have such laws, and most of us are left with only the Fourth Amendment and our state constitutions to protect us from this type of police overreach.
I think most of us at least pause at the notion of police being able to track our every movement without any sort of court approval or oversight. Regardless of the constitutional implications, to many of us it seems sci-fi future-style creepy if not completely effing terrifying (I’m in the latter camp.) It is completely reasonable to expect that in the land of the free, we can go wherever we want whenever we want without being constantly monitored. The D.C. Circuit’s calculations may be wrong, but their conclusion feels correct, and our feelings on the subject are what define or expectations of privacy. (None of this paragraph applies to anyone who thinks it’s a good idea to constantly post their whereabouts on some social networking site. You deserve to be followed.)
Today in The Daily, Judge Kozinski of the Ninth Circuit mourned the death of the Fourth Amendment, and he is correct that we have voluntarily exchanged a great measure of our privacy for the conveniences of modern technology. The Maynard decision strays from simple math and prior privacy precedent to try to breathe some life into the Fourth Amendment by protecting us from prolonged 24-hour electronic police tracking. I personally enjoy my freedom. I am not ready to say my goodbyes to the Fourth Amendment, so I don’t mind the court fudging the numbers a little to protect it. I can only hope that the Supreme Court uses a similar equation.