Sunday, June 24, 2018
Editorials

Holding back the digital snoopers

Privacy has taken a beating in the electronic age. Technology has grown cheaper, more reliable and more intrusive, and the Constitution's privacy protections apply to an ever-shrinking portion of modern life. But a ruling Monday by the U.S. Supreme Court signals a hopeful change. A majority of the court recognized that the law is lagging and a broader conception of privacy is needed to hold back a surveillance state.

The question in U.S. vs. Jones was whether the use of a GPS tracking device to monitor a suspect's movements for 28 days violated the Fourth Amendment right to be free of unreasonable searches and seizures. When the FBI and police attached a GPS device to the vehicle of suspected drug dealer Antoine Jones, they didn't have a valid warrant. The government claimed that they didn't need one, pointing to court rulings holding that a search occurs only when the surveillance violates a person's reasonable expectation of privacy, and driving in public is not a private act.

Unleashing the police from any constitutional constraint to surreptitiously attach GPS devices to vehicles did not sit well with any justice. A unanimous court ruled for Jones. Justice Antonin Scalia, writing for the court, said that a search did occur when the government intruded on Jones' vehicle for the purposes of obtaining information. That means law enforcement will need a warrant before attaching GPS to cars in the future, which is a positive result.

But Scalia's trespass-oriented analysis received only five votes, whereas two concurring opinions offered differing rationales. These justices were more forward thinking. With emerging technology in mind, they would have expanded the legal understanding of privacy.

Justice Samuel Alito and the three liberal justices who joined his concurring opinion proposed to focus on whether people have a reasonable expectation of privacy even for acts done in public. Alito noted that in the past privacy was protected by practical constraints. Society expected that law enforcement officers would not secretly follow a car continuously for four weeks — they didn't have the resources. Now that GPS makes it cheap and easy to do so, the law needs to be adjusted.

Justice Sonia Sotomayor, the fifth vote for Scalia's opinion, wrote in another concurring opinion that the Fourth Amendment should expand further. In light of how easy it is for the government to collect and store personal data, Sotomayor suggested it may be necessary for the court to consider protecting the privacy of records given to third parties.

The court has long held that people give up their expectation of privacy when their records such as phone and bank statements are in corporate hands. But now that so much of life's business results in an electronic record, including every website visited and every email sent, that bright line is no longer workable. It leaves government free to snoop into a massive amount of Americans' private information without cause — the very intrusion the Fourth Amendment was written to prevent.

The justices' concerns are encouraging signs. American civil liberties may finally be entering the digital age.

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