Following the discussions of Orin Kerr’s “technology neutral” approach to the application of the 4th Amendment in a world of new technologies comes this apocryphal post by Nicole Black.
Last week, the New York State Court of Appeals heard oral arguments regarding that very issue. At issue in People v. Weaver was the admissibility of evidence obtained without a warrant by law enforcement through the use of a GPS tracking device.The courts below concluded that the evidence was admissible. In People v. Weaver, 52 A.D.3d 138 (Third Dept. 2008), the majority held that the defendant had no expectation of privacy regarding public movements that would have been visible via the naked eye:
Inasmuch as constant visual surveillance by police officers of [the] defendant’vehicle in plain view would have revealed the same information and been just as intrusive, and no warrant would have been necessary to do so, the use of the GPS device did not infringe on any reasonable expectation of privacy and did not violate defendant’s Fourth Amendment protections. See People v. Wemette, 285 AD2d 729, 729- 730 (2001), leave denied 97 NY2d 689; People v. Edney, 201 AD2d at 499.
This decision belies the point that old law and new tech don’t mix. There is nothing wrong with the logic of the court’s rationale. Public movement is certainly available for any on-looker to see, and the good old “plain view” doctrine seems to cover the idea that we have no reasonable expectation of privacy as we travel about in the open. But of course, that ignores the salient detail that distinguishes what happened here. The defendant wasn’t tailed, but was followed by use of a GPS device planted on a car. Is it really the same?
As the Weaver case shows, technological advances present very real problems for courts. Do they really fit the old paradigm, or are courts trying desperately to shove round pegs into square holes to maintain the appearance of precedent and consistency? Consider the Weaver dissent:
Judge Leslie E. Stein, issued a lengthy dissent, opining that a warrant should have been required since technology increased the intrusiveness and duration of the monitoring, necessarily altering the analysis:[W]hile the citizens of this state may not have a reasonable expectation of privacy in a public place at any particular moment, they do have a reasonable expectation that their every move will not be continuously and indefinitely monitored by a technical device without their knowledge, except where a warrant has been issued based on probable cause. … At some point, the enhancement of our ability to observe by the use of technological advances compels us to view differently the circumstances in which an expectation of privacy is reasonable. In my opinion, that point has been reached in the facts before us.
We are already at the stage where technology allows for any target of government interest to be given the legal equivalent of a 24/7 colonoscopy. There is no place left to hide. There is no longer a reasonable expectation of privacy in much of anything, from our movements to our finances to our communications, regardless of medium. This is the product of applying a concept that worked reasonably well in the past to a future where everything is in plain view.
And as Niki points out, we’re still in the infant stages of technology. What advances will the next decade bring?
The Weaver case presents a situation where the “technology neutral” paradigm leads to an outcome that many will find unpalatable, that little black boxes will eliminate the few remaining vestiges of privacy that we want to keep to ourselves. Putting aside the question of whether one can trust the government to use technology wisely and honestly, a huge question but one that is answered more by faith and sensibility given that most people repose blind faith in the integrity of law enforcement despite all evidence to the contrary, we need to decide whether we want our personal privacy held captive by each new black box to come down the pike.
There is no way to stop technology from developing. There is a way to stop it from eliminating our privacy rights, bit by bit. It will require the law to develop new approaches to addressing how the 4th Amendment applies to developing technology rather than relying on the tried and true concepts that have guided it in the past. Technology neutral isn’t neutral at all.
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I don’t get this at all. Not because of the technology, but because, well, *I* can’t place mysterious devices in someone’s car without their permission, can I?
And if placing a GPS is the same as continuous police surveilance, there’s clearly no need for it. I think preserving the police budget is not supposed to be a constitutional reason for stomping on someone’s rights(although it often is).
You raise a very interesting point, Windy. If the use of the GPS is justified by plain view, and we are all, LEO and the rest of us, entitled to enjoy the plain view of whatever’s out there to view, then perhaps under this rationale we are allowed to stick a GPS device on any car we want. After all, it only allows us to do what we are lawfully permitted to do otherwise.
Your arguments are good; Stein’s dissent is correct.
Maybe some enterprising reader out there would like to place a GPS tracker on a police car or two and report back to us what happens next…
Also, I don’t know the law of gifts, but if someone puts something on my car like a flyer or a sticker, I’m pretty sure it becomes mine. Free GPS trackers from fuzz!!!
(Somehow, I don’t think it works that way.)
The Brits used to track Russian agents by tracking the IF emissions from their car radios. I think it may also be possible to recognize a specific vehicle by the radio emissions from the ignition system. A dog can recognize the sound of a specific vehicle and that suggests that sound as well as radio emissions can be used to track a specific vehicle. With that type of technology no external device has to be hidden on the vehicle.
We had a case where the suspect found the GPS device and removed it,later giving it to his attorney. Eventually the cops sheepishly asked for it back and it was eventually returned to them, but maybe shouldn’t have been…
I’m missing something. How is Nicole Black’s post ‘apocryphal’?
Now this may or may not be apocryphal (it’s from 1984): “There was of course no way of knowing whether you were being watched at any given moment. How often, or on what system, the Thought Police plugged in on any individual wire was guesswork. It was even conceivable that they watched everybody all the time. But at any rate they could plug in your wire whenever they wanted to. You had to live — did live, from habit that became instinct — in the assumption that every sound you made was overheard, and except in darkness, every movement scrutinized.”
Apparently, you are indeed missing something. As Niki makes clear, the consequences of this decision, given the next 10 or 20 years of technological potential, could spell the end of all privacy if left unchecked. Not quite Orwellian, but most assuredly apocryphal.
This is ‘apocalyptic’, not ‘apocryphal’. I am not in the least disagreeing with the point you are making; I was simply puzzled (given its date) as to whether Nicole Black’s post was being suggested to be apocryphal in the sense of an April Fools’ trick. Clearly it wasn’t; her post was not apocryphal; and the general concern is equally applicable in Britain, where we have local authorities putting tracking devices on dustbins to check who may be over-filling them.
This is from the House of Lords report ‘Surveillance: Citizens and the State’ :
“The Information Commissioner, Richard Thomas, has stated that there is a danger that Britain is sleepwalking into a “surveillance society”, in which the tools of mass surveillance have become ubiquitous and individual privacy a thing of the past. Although none of the witnesses we heard from went so far as to suggest that we are living in an Orwellian society—or that one is just around the corner—many endorsed the Commissioner’s concerns and argued that the steady expansion in the surveillance apparatus of the state and private sector had already transformed the everyday lives of millions of people, and not always for the better. Privacy, trust in the state, and the security of our personal information were all now at risk owing to the growth in surveillance, and there was a pressing need to take the potential pitfalls of surveillance seriously. ”