Wednesday, November 9, 2011

In Pursuit of Protection - Surveillance & Personal Freedom

The Supreme Court Tuesday began hearing a case where technology and the first amendment collide in a very tangible way. The case focuses on an attempt by law enforcement agencies to track and monitor the activity of suspicious members of society. Police organizations have been affixing GPS tracking units to the vehicles of suspects, thereby employing a very effective, tireless mechanism for tailing.

It seems that gone are the days when a suspected criminal is followed by men in trench coats and Ford Crown Vics. Instead of intuition and gumshoe surveillance, investigators are using technology to emulate CSI or perhaps Brave New World. The implications of the latter is the source of ire among defendants in the case currently under review.

To clarify, the issue is not whether law enforcement should or should not monitor suspects via GPS. The issue here is that, in this case, those investigating did not obtain a warrant before beginning the surveillance. This logistic detail, while seemingly inconsequential, has much greater implications, according to those in defense of the original case.

In Defense of Public Safety

In the particular case being reviewed, a joint task force of Washington D.C. Police and FBI monitored a suspected drug lords vehicle through GPS for almost a month, tracking his movements and activities through a constant GPS signal. The surveillance led to the mans arrest, and the seizure of more cocaine than I can even fathom. Slam dunk for the good guys, right?

Not according to proponents of the fourth amendment.

Constitutional Infringement

A positive outcome is not always justification for questionable processes. In this case, the D.C. task force obtained warrants for wiretapping operations earlier in the investigation. They assumedly obtained proper authorization to arrest the suspect, after the month of tracking and monitoring. But in using this new technology, they failed to consider the broader scope of their actions.

The first element to consider is that the GPS device was being affixed to the underside of the suspects vehicle, which is his private property. In a 1967 ruling, the Supreme Court stated that an individual, when in his or her vehicle, has a "reasonable expectation of privacy". This ruling was modified in 1982 and again in 2009 to account for searches during routine traffic stops, but has remained largely in effect for the last forty years. But does placing a GPS tracking unit on the exterior of a vehicle constitute a search and/or seizure, as protected in the fourth amendment?

Further complicating the matter is the fact that private property, when on a public right-of-way, is subject to search without court-permission. Generally, this refers to a trash can sitting in an alley or other discarded property, not a vehicle on a public road or highway. Again, the use of new technology places this case in uncharted waters.

Implications of Unwarranted GPS Monitoring

I don't think anyone disagrees that using GPS to catch an international drug lord is a positive use of burgeoning technology. The hesitation comes when surveillance of a less threatening individual takes place, where probable cause cannot so easily be identified.

Assumptions based on location could lead to false correllations. Should the government have the right to monitor where a citizen goes for recreation, religious worship, or friendly association? How might subjective assessment of one's geographic location create skewed profiles of individuals when compiled with his or her race, age, physical appearance or other demogeraphics?

The main concern in this case is the lack of oversight. The law enforcement agencies monitored one man's movements for twenty eight days, without court knowledge. The ease of this surveillances' facilitation, coupled with the lack of objective review makes it easy to extrapolate the dire consequences on our societies' freedoms, should this practice become widely accepted.

In the end, it seems evident that this sort of unwarranted surveillance be tightly restricted. The courts are in place in order to provide a checks-and-balance system for our law enforcement agencies. While it is an imperfect system, it is the only thing we have to protect our society from the realities of 1984 or Minority Report.

It seems those Science Fiction stories may be closer than we realize.


My knowledge of Supreme Court rulings and amendment protection is not as expansive as the above essay might imply. Here are some of the sources that I used to brush up on the issues. Knowledge is power.

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