By Jeffrey Rosen September 12, 2011 NYT
IN November, the Supreme Court will hear arguments in a case that could redefine the scope of privacy in an age of increasingly ubiquitous surveillance technologies like GPS devices and face-recognition software.
The case, United States v. Jones, concerns a GPS device that the police, without a valid warrant, placed on the car of a suspected drug dealer in Washington, D.C. The police then tracked his movements for a month and used the information to convict him of conspiracy to sell cocaine. The question before the court is whether this violated the Fourth Amendment to the Constitution, which prohibits unreasonable searches and seizures of our “persons, houses, papers, and effects.”
It’s imperative that the court says yes. Otherwise, Americans will no longer be able to expect the same degree of anonymity in public places that they have rightfully enjoyed since the founding era.
Two federal appellate courts have upheld the use of GPS devices without warrants in similar cases, on the grounds that we have no expectation of privacy when we are in public places and that tracking technology merely makes public surveillance easier and more effective.
But in a visionary opinion in August 2010, Judge Douglas H. Ginsburg, of the United States Court of Appeals for the District of Columbia Circuit, disagreed. No reasonable person, he argued, expects that his public movements will be tracked 24 hours a day, seven days a week, and therefore we do have an expectation of privacy in the “whole” of our public movements.
“Unlike one’s movements during a single journey,” Judge Ginsburg wrote, “the whole of one’s movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil.”
Judge Ginsburg realized that ubiquitous surveillance for a month is impossible, in practice, without technological enhancements like a GPS device, and that it is therefore qualitatively different than the more limited technologically enhanced public surveillance that the Supreme Court has upheld in the past (like using a beeper to help the police follow a car for a 100-mile trip).
The Supreme Court case is an appeal of Judge Ginsburg’s decision. If the court rejects his logic and sides with those who maintain that we have no expectation of privacy in our public movements, surveillance is likely to expand, radically transforming our experience of both public and virtual spaces.
For what’s at stake in the Supreme Court case is more than just the future of GPS tracking: there’s also online surveillance. Facebook, for example, announced in June that it was implementing face-recognition technology that scans all the photos in its database and automatically suggests identifying tags that match every face with a name. (After a public outcry, Facebook said that users could opt out of the tagging system.) With the help of this kind of photo tagging, law enforcement officials could post on Facebook a photo of, say, an anonymous antiwar protester and identify him.
There is also the specter of video surveillance. In 2008, at a Google conference on the future of law and technology, Andrew McLaughlin, then the head of public policy at Google, said he expected that, within a few years, public agencies and private companies would be asking Google to post live feeds from public and private surveillance cameras all around the world. If the feeds were linked and archived, anyone with a Web browser would be able to click on a picture of anyone on any monitored street and follow his movements.
To preserve our right to some degree of anonymity in public, we can’t rely on the courts alone. Fortunately, 15 states have enacted laws imposing criminal and civil penalties for the use of electronic tracking devices in various forms and restricting their use without a warrant. And in June, Senator Ron Wyden, Democrat of Oregon, and Representative Jason Chaffetz, Republican of Utah, introduced the Geolocation Privacy and Surveillance Act, which would provide federal protection against public surveillance.
Their act would require the government to get a warrant before acquiring the geolocational information of an American citizen or legal alien; create criminal penalties for secretly using an electronic device to track someone’s movements; and prohibit commercial service providers from sharing customers’ geolocational information without their consent — a necessary restriction at a time of increasing cellphone tracking by private companies.
It’s encouraging that Democrats and Republicans in Congress are coming together to preserve the expectations of anonymity in public that Americans have long taken for granted. Soon, liberal and conservative justices on the Supreme Court will have an opportunity to meet the same challenge.
If they fail to rise to the occasion, our public life may be transformed in ways we can only begin to imagine.
Jeffrey Rosen, a law professor at George Washington University, is an editor of the forthcoming book “Constitution 3.0: Freedom and Technological Change.”