JUDGES RULE FOR GADGETS OVER PRIVACY

Fourth Amendment Rulings Have Expanded Police Search Power in New
Technologies. Next Up: A GPS Case at the Supreme Court.

Sunset Strip bookie Charlie Katz suspected the feds had bugged his
apartment, so he would amble over to a pay phone outside where
Carney's hot dog joint now stands to call in his bets to Boston and Miami.

It was 1965, a time when phone booths had four glass walls and a
folding door, allowing Katz to seal himself off from eavesdroppers.
Or so he thought.

FBI agents planted a recording device at the booth and taped his
dealings, leading to his conviction on eight illegal wagering
charges. But two years later, Katz became a legal trailblazer when
the U.S. Supreme Court tossed his conviction and expanded the 4th
Amendment's guarantee of freedom from unreasonable search and seizure
to include a citizen's "expectation of privacy."

The ruling in Katz vs. United States may have been a high-water mark,
though, for recognition of individuals' right to be "secure in their
persons, houses, papers and effects."

Court rulings since then have significantly limited what people can
expect to keep private. This shift has accelerated as new
technologies - including smartphones and GPS - have emerged.

The U.S. Supreme Court on Tuesday will take up another hot-button 4th
Amendment issue: whether GPS surveillance without a warrant
constitutes an unreasonable search. The case, United States vs.
Jones, will decide the law on GPS tracking across the country.

Last year, the U.S. Supreme Court overturned a decision by the
usually liberal-leaning U.S. 9th Circuit Court of Appeals that an
Ontario police sergeant's privacy had been violated when the city's
police chief read through private text messages sent from his pager.
The high court said public employees - who number 20 million
nationwide - didn't have an expectation of privacy when sending
personal messages on company devices.

Recent federal court rulings still making their way through the
appeals process have condoned police seizure in the course of an
arrest of everything stored on a suspect's smartphone - photos,
banking records, email and Internet traffic - regardless of its
relevance to the offense prompting the arrest.

The aftermath of the Sept. 11, 2001, attacks has resulted in even
more government access to personal records. Courts have upheld the
broad powers that the 2001 Patriot Act granted national security
agents to access email, wiretap telephones or track a suspect's
Internet use, all without a warrant and in secret, preventing the
targets from knowing they are under surveillance.

The Supreme Court review of privacy rights and GPS tracking comes a
year after the 9th Circuit ruled that federal Drug Enforcement
Administration agents didn't violate an Oregon man's rights when they
entered his driveway at 4 a.m. to clandestinely install a global
positioning device on his car. Authorities used the data on his
movements over four months to build a case that Juan Pineda-Moreno
was illegally growing marijuana.

A ruling in United States vs. Jones - a case involving the use of a
car-mounted GPS device to track a drug-trafficking suspect in the
Washington, D.C., area - could settle the law in the Pineda-Moreno
decision and in other challenges to such warrantless monitoring by
government agencies. The 4th Amendment restrictions have been harshly
lamented by 9th Circuit Chief Judge Alex Kozinski, a libertarian who
tends to side with the court's progressives on privacy and 1st
Amendment issues.

"The needs of law enforcement, to which my colleagues seem inclined
to refuse nothing, are quickly making personal privacy a distant
memory," Kozinski wrote in an impassioned objection to the
Pineda-Moreno ruling by a three-judge panel of Republican appointees,
like himself.

Writing for the panel, Judge Diarmuid F. O'Scannlain said
Pineda-Moreno couldn't expect to have privacy in his driveway because
it had no gate, no sign against trespassing and was regularly used by
letter carriers, delivery services and visitors. Furthermore, the
judge noted from an earlier 9th Circuit ruling, "a person traveling
in an automobile on public thoroughfares has no reasonable
expectation of privacy in his movements from one place to another."

Legal experts say the government now has much greater search and
seizure powers than it did when Charlie Katz entered that Sunset
Boulevard phone booth.

"This has become a huge issue, far beyond police putting GPS on your
car, because we are all carrying around portable GPS devices," Chris
Calabrese, legislative counsel for the American Civil Liberties
Union, said of the tens of millions of cellphones and locating
gadgets in Americans' cars and pockets.

Since the Patriot Act expanded government agents' clandestine access
to individuals' communications records, the use of so-called national
security letters seeking the information has increased
astronomically, the ACLU said in a report earlier this year. It
detailed the roadblocks encountered in three lawsuits it has brought
challenging the intelligence services' right to clandestinely search
or wiretap virtually any communications user.

California Gov. Jerry Brown has also followed the national trend of
aiding law enforcement over individual rights. Last month, Brown
vetoed a bill passed by the Legislature with a unanimous bipartisan
vote prohibiting police from searching an arrestee's cellphone
without a warrant. The governor cited a January California Supreme
Court decision allowing such searches in saying that the question of
whether police should have access is best left to the courts.

Prosecutors hail the courts' protection of their access to data that
can be a major crime-fighting tool.

"In gang cases and in drug cases, the way cellphones are used today -
whether you're talking about Twitter or Facebook or texting or use of
the phone - it's just such a part of how things are being done, how
things are planned, that getting immediate access to those things at
the time of arrest is becoming more critical to preventing further
violence and criminal conduct," said W. Scott Thorpe, head of the
California District Attorneys Assn.

Michael Scott, a professor of privacy and technology law at
Southwestern Law School, said he feared the state of 4th Amendment
protection is "not too far from police being able to download phones
during a traffic stop." But what appear to some analysts to be the
erosion of privacy protections, Scott said, are actually the courts
updating the Katz test of whether individuals can expect privacy in
the changed circumstances of the digital era. Techniques like the use
of GPS don't give police access to information that isn't already
available to them if they physically follow a suspect, Scott noted.

Jesse Choper, a UC Berkeley constitutional law professor, sees
conservative shifts on the two most influential courts in the country
as the reason for the narrowing privacy definition. The Supreme
Court's 5-4 majority of Republican-appointed justices tends to
support law enforcement over privacy protection, and the 9th Circuit,
although still dominated by appointees of Democratic presidents, has
seen its liberal majority diluted by more moderate nominations by
President Clinton and stalwart conservatives named to the court by
President George W. Bush, Choper said.

The courts' redefinition of what can be considered private has been
brought on by both technology and youthful communities willingly
sharing thoughts, photos and intimate details with strangers on
social networks like Facebook and Twitter, said Gerald Uelmen, a
Santa Clara University professor of criminal law.

"They've created a culture of exposing everything on the Internet,
including their private parts," said Uelmen. "We're seeing a whole
generation for whom privacy is not important."