The Government's New Right to Track Your Every Move With GPS
Time.com

By ADAM COHEN Adam Cohen – Thu Aug 26, 3:45 am ET

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.

The Government's New Right to Track Your Every Move With GPS - Yahoo! News


Slippery slope indeed..........

I don't think this idea will ever be put back in the bag.........

The ninth circus is the most overturned court in the land and I would bet that this is going to be just another example of how nuts this court is. Unfortunately we are going to have to wait another year before this gets overturned.

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Courtesy of Swissman

A gun in the hands of a free man frightens and angers the autocrat, not because he fears the power of the gun, but, rather, the spirit of the man who holds it.

ANONYMOUS

It looks as if 1984 has arrived at last--albeit 26 years late...

If citizens have no "reasonable expectation of privacy" in their own cars, where might they have such a "reasonable expectation"?

Police don't need a warrant to sit out in the street and wait for you to get in your car and drive off so they can follow you...what exactly is the difference between that and planting a GPS transponder on your car - other than the cop isn't being paid by your tax dollars to follow you around?

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“A man who lies to himself, and believes his own lies, becomes unable to recognize truth, either in himself or in anyone else." Fyodor Dostoevsky
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"Public office is the last refuge of the incompetent." Boies Penrose
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"Just an old sweet song keeps Georgia on my mind" Stuart Gorrell

Considering the lack of trnsparency of this administration and the continuing lie of believing there'd be CSpan cameras to view the legislative process, it looks like the only places there's a reasonable expectation of privacy is Congress and the White House...

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"You get the respect that you give" - cnredd

That seems a little like one's asserting that if it is okay to view a dancer at a strip club, then it should be equally acceptable to hide a camera in her bedroom, in an act of blatant voyeurism...

It doesn't seem like that at all to me, since in one case the dancer is performing publicly and in the other she is in the privacy of her bedroom.

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“A man who lies to himself, and believes his own lies, becomes unable to recognize truth, either in himself or in anyone else." Fyodor Dostoevsky
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"Public office is the last refuge of the incompetent." Boies Penrose
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"Just an old sweet song keeps Georgia on my mind" Stuart Gorrell

I was waiting for some lefty to defend this action by law enforcement. Seems those evil conservatives are for civil liberties again.

IMHO, they need a warrant to attach any surveillance equipment in any case not time sensitive. The DEA had time to go to a judge to get a warrant which serves as oversight/checks and balances to one of the three branches of government.

I'm not a lefty, and I'm not defending it. I'm just asking questions - much like the wacko rightwingers' hero Glenn Beck.

How 'bout actually answering my question instead of just frothing at the mouth?

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“A man who lies to himself, and believes his own lies, becomes unable to recognize truth, either in himself or in anyone else." Fyodor Dostoevsky
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"Public office is the last refuge of the incompetent." Boies Penrose
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"Just an old sweet song keeps Georgia on my mind" Stuart Gorrell

Presumably, the dancer in this analogy would not object to the customer's presence at the club in which she performs; but she would still not want to have him snooping surreptitiously in her bedroom.

Likewise, the person who is the target of a police investigation could not (reasonably) object to traditional surveillance techniques being used by the police; but he would probably draw the line at their attaching a GPS device to his car--and without a warrant, yet...