-Ed
http://news.yahoo.com/s/time/08599201315000
The Government's New Right to Track Your Every Move With GPS
Time.com
By Adam Cohen
Aug 25, 2010
Government agents can sneak onto your property in the middle of the
night, put a GPS device on the bottom of your car and keep track of
everywhere you go. This doesn't violate your Fourth Amendment rights,
because you do not have any reasonable expectation of privacy in your
own driveway - and no reasonable expectation that the government isn't
tracking your movements.
That is the bizarre - and scary - rule that now applies in California
and eight other Western states. The U.S. Court of Appeals for the
Ninth Circuit, which covers this vast jurisdiction, recently decided
the government can monitor you in this way virtually anytime it wants
- with no need for a search warrant. (See a TIME photoessay on
Cannabis Culture.)
It is a dangerous decision - one that, as the dissenting judges
warned, could turn America into the sort of totalitarian state
imagined by George Orwell. It is particularly offensive because the
judges added insult to injury with some shocking class bias: the
little personal privacy that still exists, the court suggested, should
belong mainly to the rich.
This case began in 2007, when Drug Enforcement Administration (DEA)
agents decided to monitor Juan Pineda-Moreno, an Oregon resident who
they suspected was growing marijuana. They snuck onto his property in
the middle of the night and found his Jeep in his driveway, a few feet
from his trailer home. Then they attached a GPS tracking device to the
vehicle's underside.
After Pineda-Moreno challenged the DEA's actions, a three-judge panel
of the Ninth Circuit ruled in January that it was all perfectly legal.
More disturbingly, a larger group of judges on the circuit, who were
subsequently asked to reconsider the ruling, decided this month to let
it stand. (Pineda-Moreno has pleaded guilty conditionally to
conspiracy to manufacture marijuana and manufacturing marijuana while
appealing the denial of his motion to suppress evidence obtained with
the help of GPS.)
In fact, the government violated Pineda-Moreno's privacy rights in two
different ways. For starters, the invasion of his driveway was wrong.
The courts have long held that people have a reasonable expectation of
privacy in their homes and in the "curtilage," a fancy legal term for
the area around the home. The government's intrusion on property just
a few feet away was clearly in this zone of privacy.
The judges veered into offensiveness when they explained why
Pineda-Moreno's driveway was not private. It was open to strangers,
they said, such as delivery people and neighborhood children, who
could wander across it uninvited. (See the misadventures of the CIA.)
Chief Judge Alex Kozinski, who dissented from this month's decision
refusing to reconsider the case, pointed out whose homes are not open
to strangers: rich people's. The court's ruling, he said, means that
people who protect their homes with electric gates, fences and
security booths have a large protected zone of privacy around their
homes. People who cannot afford such barriers have to put up with the
government sneaking around at night.
Judge Kozinski is a leading conservative, appointed by President
Ronald Reagan, but in his dissent he came across as a raging liberal.
"There's been much talk about diversity on the bench, but there's one
kind of diversity that doesn't exist," he wrote. "No truly poor people
are appointed as federal judges, or as state judges for that matter."
The judges in the majority, he charged, were guilty of "cultural
elitism." (Read about one man's efforts to escape the surveillance
state.)
The court went on to make a second terrible decision about privacy:
that once a GPS device has been planted, the government is free to use
it to track people without getting a warrant. There is a major battle
under way in the federal and state courts over this issue, and the
stakes are high. After all, if government agents can track people with
secretly planted GPS devices virtually anytime they want, without
having to go to a court for a warrant, we are one step closer to a
classic police state - with technology taking on the role of the KGB
or the East German Stasi.
Fortunately, other courts are coming to a different conclusion from
the Ninth Circuit's - including the influential U.S. Court of Appeals
for the District of Columbia Circuit. That court ruled, also this
month, that tracking for an extended period of time with GPS is an
invasion of privacy that requires a warrant. The issue is likely to
end up in the Supreme Court.
In these highly partisan times, GPS monitoring is a subject that has
both conservatives and liberals worried. The U.S. Court of Appeals for
the D.C. Circuit's pro-privacy ruling was unanimous - decided by
judges appointed by Presidents Ronald Reagan, George W. Bush and Bill
Clinton. (Comment on this story.)
Plenty of liberals have objected to this kind of spying, but it is the
conservative Chief Judge Kozinski who has done so most passionately.
"1984 may have come a bit later than predicted, but it's here at
last," he lamented in his dissent. And invoking Orwell's totalitarian
dystopia where privacy is essentially nonexistent, he warned: "Some
day, soon, we may wake up and find we're living in Oceania."
Cohen, a lawyer, is a former TIME writer and a former member of the
New York Times editorial board.
Received on Sat Mar 02 2024 - 00:57:26 CST