Yesterday the United States Supreme Court decided unanimously that putting a GPS tracker on someone's car falls within the Fourth Amendment to the Constitution. These decisions may be particularly difficult for the fundamentalists on the Court, because it's not easy to see how the Founding Persons could have had the space-based Global Positioning System in mind when they were framing our government. Technology forces the Court's members to make our legal system contemporary.
Societies always play catch-up with technologies that significantly alter power. The 21st Century seems to be bringing a collection of new challenges to our traditional ideas of privacy, search, and seizure.
One provocative privacy topic comes from the ability of other people to learn where you are and where you've been. GPS tracking, which now requires a warrant, isn't as complex as more passive tracking. For example, the companies that sell you mobile phone service know your location from the relationship of your phone to cell towers - that's how you're able to make and receive untethered calls. Turning off the GPS function in your phone won't change this and some phones even interact with the network when completely switched off. Who has access to that location information? Sometimes it seems like the answer is: just about anyone but you.
The toll transponder on your car's windshield leaves records of your route, and these gizmos are fast becoming the standard for travel in some places - the new toll structure for entering New York City, for example, puts a sizable financial penalty on drivers who enter without a Fast Pass.
The satellite photos of the Italian ship lying on its side reminds us of the degree to which anyone can find out what's in your backyard by use of on-line overhead image databases. Governments have access to much greater detail than ordinary citizens do, using secret surveillance satellites, space stations and high-altitude aircraft. Low-altitude drones are being tested in the US - with scant public notice.
Is any of this covered by the Fourth Amendment?
Other challenges to privacy abound. Today's New York Times had a piece about Google trying to get states to change their laws to permit driverless vehicles. The article wonders, if a cop pulls a driverless car over (and how would that be done?), is this a seizure of your property?
Biology brings up another list of privacy issues. I remember sitting in the courtroom as the Supreme Judicial Court of Massachusetts heard a case about a man compelled to give his DNA to the state. This is not the same the state taking an image of the outside of your body (a mug shot or fingerprint), because the government is taking something tangible from inside your body, along with the unique identity it represents. The issue here isn't the use of DNA as evidence - including for exoneration - but rather the state seizing something of yours without your permission.
These challenges to our evolving social system are to be expected, just as the agrarian tradition of children working on the farm had to be modified as industrialism took hold and led to the creation of child labor laws. It's worrisome that some in power say "trust me, I'll behave myself," as our President did when he recently signed the Defense Authorization bill undermining our protection from being jailed without a hearing.
The rule of law exists so that we don't have our liberties depend on the good will of a company, government or person. Laws at least potentially apply to everyone, all the time. This is bedrock for a civil society - authoritarianism or anarchy are alternatives.
I have GPS and a cell phone and I access my medical records on line. Let's not do away with progress - but we'd better make sure that the unintended consequences of transformative technologies don't put new power into the hands of those who intend to reduce or eliminate our freedom.
Yesterday I promised you images of Jimmy's first trip to the groomer. Both Jimmy and I were glad when the ordeal was over. We came home, curled up together with tea and biscuits (respectively), and I kept telling Jimmy, it will grow back:
