THE GPS AS CREEPY SHADOW

Most people would be shocked to learn that law enforcement can go on
your property without a warrant and attach a Global Positioning System
tracking device to your car, enabling them to follow your every move
for as long as they want.

But that's the effect of a decision last month by the 9th Circuit
Court of Appeals in refusing to reconsider the case of an Oregon man
convicted on drug charges. It's OK to attach and track, a three-judge
panel ruled earlier this year, because although you may have an
expectation of privacy in your home, that expectation does not extend
to your car parked in your driveway.

The decision to deny a rehearing drew a spirited rebuke from the
court's chief judge, Alex Kozinski, who called this gift to law
enforcement "creepy and un-American."

"1984 may have come a bit later than predicted," Kozinski wrote for
himself and four others, "but it's here at last."

The question of how to protect privacy and defend against intrusive
government surveillance with the advent of new technologies is
fascinating and complicated. Police are substituting electronics for
old-fashioned manpower, but is it the same thing?

The Fourth Amendment protects Americans from unreasonable searches and
seizures, but "unreasonable" is a flexible term. For while advocates
of GPS say they don't need a warrant because it's the same thing as
physical tracking, others believe there should be a different
standard. Secretly keeping track of every place a person goes for days
on end is a new and different kind of intrusion.

Earlier last month, for example, the District of Columbia appeals
court ruled in another tracking case that extended GPS monitoring
without a warrant is an unconstitutional violation of the Fourth Amendment.

With tension among the circuits, the U.S. Supreme Court should weigh
in on the subject.

It's pretty well established that a person who parked a car on the
street, or even in a private parking lot, would have no expectation of
privacy. Those are public places.

But what about a car parked at home? Isn't a driveway connected to the
home? What about the front yard? Is that an extension of the home?

Not according to the 9th Circuit. The case started in 2007 when drug
enforcement agents attached several GPS devices to a suspected drug
dealer's car. They monitored his comings and goings over four months
and used the information gathered to secure his arrest and indictment.

The police could have sought a warrant but did not. The suspect asked
the court to throw out the evidence gathered as a result of the GPS
tracking. The trial judge denied the suppression motion, and the
suspect appealed.

The 9th Circuit panel subsequently upheld the district court's ruling,
equating the agents' actions with newspaper delivery or a neighbor
retrieving a ball from under the car.

But Kozinski, who berated his colleagues with relish, had the better
reasoning. Most people, he insisted, don't believe their car parked at
home "invites people to crawl under it and attach a device... There is
something creepy and un-American about such clandestine and
underhanded behavior."

The tracking devices, he further noted, "create a permanent electronic
record that can be compared, contrasted and coordinated to deduce all
manner of private information about individuals. By holding that this
kind of surveillance doesn't impair an individual's reasonable
expectation of privacy, the panel hands the government the power to
track the movements of every one of us, every day of our lives."

Kozinski's Orwellian view of the world may be a bit dramatic, but
technological advances have built a surveillance society that demands
us to reconsider what is a reasonable expectation of privacy.