TRI In The News
Time to Blindfold Big Brother
From The Denver Post
Original article available here
Many of us can understand where Tonya McKinely is coming from, even if we've grown used to the idea of being filmed on public streets and in stores.
"It's just weird," McKinely said of an Aurora police proposal to install high-quality surveillance cameras on a stretch of East Colfax Avenue. "The fact that someone could soon get a feel for my daily routine because of a camera's abilities isn't cool."
McKinely may be right about the potential for abuse in blanketing commercial corridors with surveillance cameras, but the fact remains that we're fair game for a camera whenever we step on a city sidewalk. And that's true whether the device is owned by Aurora, a tourist or a random busybody. If we're going to take a stand on behalf of privacy, let's focus on genuine threats of a far more urgent nature.
It so happens that our protection from government snooping has been imperiled by the digital age, and the courts have just begun to take notice.
Earlier this year, for example, a unanimous U.S. Supreme Court decreed that when police attach a GPS tracking device to a car and then monitor the vehicle's whereabouts, it "constitutes a search or seizure within the meaning of the Fourth Amendment." So they'd better have a warrant. Yet the ruling only scratches the surface of a growing high-tech privacy threat, as two justices noted in separate opinions.
After all, observed Justice Samuel Alito, what if police had not actually intruded onto the suspect's property by attaching the GPS to the car? What if they'd followed his movements through an on-board GPS — or, for that matter, one in his smartphone?
Or what if they'd remotely activated a "stolen vehicle detection system that came with the car"? Wouldn't that be problematic, too?
As Alito argues, what troubles people is not so much that police attach to "the bottom of a car a small, light object that does not interfere in any way with the car's operation." It's the use of the GPS itself. And it's just as troubling when police exploit technology already in our possession and "without a technical trespass."
In her opinion, Sonia Sotomayor agreed with Alito that "longer-term" GPS monitoring tends to violate expectations of privacy, but then went further. "I would ask whether people reasonably expect that their movements will be recorded and aggregated" — even in the short term — "in a manner that allows the government to ascertain, more or less at will, their political and religious beliefs, sexual habits, and so on."
Keep asking, Madam Justice.
Early court opinions on wiretapping suffered from defects similar to the court's GPS ruling in that they outlawed surveillance that intruded on a suspect's property. But in 1967 the court broadened its view and, in Alito's words, said "trespass was not required for a Fourth Amendment violation."
Congress and the states also got involved in limiting use of wiretaps, just as they should with GPS, stolen vehicle detection systems, drones, and the rest of the growing arsenal of high-tech gizmos. Otherwise we could find ourselves someday facing, in the words of John Whitehead of the Rutherford Institute, "the all-seeing surveillance state, powered by the latest and greatest ... technology."
