“Technology keeps changing faster than the law can evolve to handle it.”
That's been a truism for over a generation now, especially in the field of personal privacy. Suppose, for example, you want to track a given person's movements throughout the course of a day, or longer: once upon a time, the only way to do that was to have people physically follow your target around, which required a lot of money and effort, not to mention risk of detection.
Today, technology allows you to track people literally at the touch of a button, click of a mouse, or swipe of a touchscreen.
Technology allows it, yes — but does the law allow it? And should the law allow it? Right now there's still no firm answer to either question.
On June 16 the Associated Press analyzed the current status quo in a piece with the understated title “GPS tracking case has left unsettled questions.”
First, a bit of background: in January 2012 the Supreme Court issued a ruling in the case of United States vs. Jones. (The full ruling is available in .pdf form here.) If you had to summarize the 34-page ruling in one [long] sentence, it would be this: When police use a GPS tracking device to record a suspect's whereabouts, that does indeed qualify as a “search” according to the Constitution's Fourth Amendment, which means police and other legal authorities can't use GPS tracking to search any old person any old time they want to; constitutional limits apply to the authorities' actions as well.
Sounds straightforward (at least by American legal standards), but in practice, courts, cops and other authorities throughout the country can't figure out how to consistently apply this rule to other situations. As the AP said:
That ambiguity was on display just last week, when an Atlanta-based federal appeals court ruled in the case of a man imprisoned for armed robberies that investigators need a warrant to get cellphone tower tracking data, evidence authorities use to place suspects in the vicinity of a crime. Yet an appeals court in New Orleans last year authorized warrantless cell site tracking in a case that presented similar legal issues. A related federal case in Michigan is now on appeal, too.
The questions form a broader debate about how police should confront "circumstances of legal ambiguity," said former federal prosecutor Caleb Mason, who has written on the Jones case.
"Do we want them pushing the envelope as long as no legal authority, no appellate court, has expressly told them no?" he asked.
Of course, it might be argued that this is merely the latest high-tech version of various questions which legal theorists have been debating since before the Constitution was written: what rights do citizens have, whether or not they're suspected of a crime? How much power should authorities have when investigating suspects?
Where GPS car tracking is concerned, there are additional wrinkles: if the police get a warrant and have the right to track your car (presumably because they suspect you, personally, are up to something), what if any rights might your passengers have? Conversely, if you're a passenger in someone else's (secretly tracked) car, have your privacy rights been violated?
It will probably take many years and many Supreme Court sessions to settle all these questions. If you're feeling extra cynical, you might even predict “The courts and legal scholars will come up with the definitive answer on how to handle GPS technology five minutes after GPS technology becomes officially obsolete.”
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