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In a victory for privacy advocates, the Supreme Court ruled Monday that police need a warrant to hide a GPS device on a suspect’s car. While the ruling centers on personal property rights, some say it also signals a willingness to explore the broader question of privacy rights in this era when everyone can be tracked through cell phones and global positioning devices.
- Mark Rasch Director, Cybersecurity and Privacy Consulting at CSC
- Jeffrey Rosen Professor of Law, George Washington University Law School; Legal Affairs Editor, The New Republic; co-editor, Constitution 3.0: Freedom and Technological Change
MR. KOJO NNAMDIFrom WAMU 88.5 at American University in Washington welcome to "The Kojo Nnamdi Show," connecting your neighborhood with the world. Later in the broadcast, former Chilean President Ricardo Lagos on standing up to a dictator and then leading a country to a brighter future. But first, privacy advocates are cheering after the Supreme Court ruled yesterday that police cannot attach a GPS device to a suspect's car without a warrant.
MR. KOJO NNAMDIThe case involved a Washington nightclub owner who police suspected was dealing drugs. They stuck a GPS to the bottom of his jeep and monitored his movements for a month. That surveillance led to his arrest and conviction. But his lawyers argued that the Fourth Amendment of the Constitution protected the man from what amounted to an unreasonable search. All nine justices agreed and while the majority focused on placing the device on the car, a minority also addressed the broader question of privacy in this GPS and cell phone era.
MR. KOJO NNAMDIJoining us in studio to discuss it is Jeffrey Rosen. He's a professor of law at George Washington University Law School and legal affairs editor of The New Republic. He's co-editor of the book "Constitution 3.0: Freedom and Technological Change," Jeffrey Rosen thank you for joining us.
MR. JEFFREY ROSENWonderful to be here...
NNAMDIAlso in studio with us is Mark Rasch, director of Cybersecurity and Privacy Consulting at CSC. He's a former federal prosecutor. Mark Rasch, thank you for joining us.
MR. MARK RASCHThank you, Kojo.
NNAMDIJeffrey this was a unanimous decision. What's the significance of the fact that all nine justices agreed?
ROSENIt's tremendously significant because it shows that all of them understand the need to translate the constitution in light of technological change. The court unanimously rejected the Obama administration's extreme and unnecessary claim that citizens have no expectation of privacy in their public movements and that whenever we move outside the home, we can be tracked without limits.
ROSENIt's true that the court disagreed in important ways about exactly how privacy should be protected in the future. The majority, as you suggested, focused on the fact that the suspect's property rights were interfered with when the police placed a GPS device on the bottom of his car without a warrant and four justices, led by Justice Samuel Alito, would have held much more broadly that there's a difference between short-term surveillance for say a day and long-term surveillance for a month.
ROSENAnd because 24/7 ubiquitous surveillance for a month can reveal so much more about us, our thoughts and our beliefs and our associates that that sort of long-term surveillance presumptively requires a warrant. But basically, it's a tremendously exciting decision because it suggests the court will not back away from the need to confront these new technologies and is ready to fill in the details in future cases.
NNAMDIMark Rasch, there were three opinions written in this case. Justice Scalia wrote the main opinion and Justices Alito and Sotomayor each wrote concurring opinions. What's the reasoning in each of the three?
RASCHWell, the fascinating opinion is the one of Justice Sotomayor because remember to track the car in this particular case, what the government needed to do is they had to put a device on to Jones' car, actually his wife's car and then they had to turn it on and monitor it.
RASCHAnd what the majority decision said, or what Scalia said, was the act of putting the device on the car was a search and seizure and interfered with his property rights to his car. And what Justice Alito pointed out and those who joined his opinion said, look, really while I'm agreeing with the majority, the act of putting this device on the car isn't the problem here. You know, people put stuff on people's cars all the time. You put leaflets on people's cars. This isn't a trespass, it's not breaking in. While it's a violation of rights, it's not because of the physical trespass.
RASCHWhat Justice Sotomayor talked about is, she said, look, we have to get beyond this. We have to look not at the technology that we use, but at what privacy rights people have. And she predicted, and quite correctly, that the police will be able to get around this decision very quickly by saying, all right, we're not going to put a device on your car, we're just going to monitor it from an airplane or a satellite. Or we're going to track your cell phone or we're going to track apps on your cell phone. So there's so many other ways to track where you're going. They really skirted the big issue here, at least for the time being.
NNAMDIBut it looks as if they are willing, at least a minority of the court is, for the time being, willing to look at the big issue in the future, that is the larger question of privacy.
ROSENThey really are. And at least five justices seem to get it. Justice Alito said too, right now, the cops could subpoena the lojack device that's built into your car and, without a physical trespass, could monitor you. And that's why it was so significant that Justice Sotomayor signaled a willingness to revisit the doctrine that when I turn over information to Apple or Google, I abandon all expectation of privacy that Google or Apple won't turn it over to the government.
ROSENThat's called the third-party doctrine and the court recognized it in a series of cases involving financial privacy where they said, if I turn over depositor information to my bank, the bank can be forced to turn that over to the government. That decision was so unpopular that Congress overturned it by statute, but nevertheless, the court has continued to maintain it.
ROSENAnd in an age when all of our private papers are stored, not in locked desk drawers, but on distributed third-party servers in the digital cloud owned by Google and Yahoo, unless that doctrine is re-examined, then we'll have less privacy today than the framer's took for...
NNAMDIIn case you're just joining us, we're discussing yesterday's Supreme Court ruling on GPS surveillance on a car, that was on the car for about a month. We're talking with Mark Rasch. He is director of Cybersecurity and Privacy Consulting at CSC. He's a former federal prosecutor and Jeffrey Rosen who is a professor of law at George Washington University Law School and the legal affairs editor for The New Republic.
NNAMDIWe're taking your calls at 800-433-8850. How do you feel about tracking a crime suspect with a secret GPS? 800-433-8850 or how is using a GPS to track a suspect any different from assigning an officer to actually tail that person? You can also go to our website, kojoshow.org, join the conversation there or you can send email to email@example.com This is an ostensibly conservative court that seems to have ruled in favor of individual privacy and I guess also importantly against easing the way for law enforcement. What do you make of that, Mark?
RASCHWell, you know, most law enforcement officers were already getting warrants and, in fact, there was a warrant in this case. It just happened to have expired before the date...
NNAMDIThey used it in the wrong state?
RASCHThey used it in the wrong state and it had already actually expired so it's not that big a burden for police to get a warrant or some other kind of court order. The court didn't really say, although everyone's implying that you had to have a warrant in this case. What they said is this is a search and seizure covered by the Fourth Amendment.
RASCHBut more broadly if you look at this the court has an opportunity either in this case or in the future to say there are clear rules on what you can do from privacy and what Jeff was talking about before, what's called the Smith v. Maryland rule which relates to records about you held by a third party, which are your phone records, your emails, almost everything...
RASCHEverything is out there. And what Justice Sotomayor pointed out is, look, when we decided the Smith v. Maryland case, what, 30 years ago, we assumed that the police could subpoena your phone records from the phone company and that wouldn't be that big of a deal. By the way, the dissent in Smith said, you're going to see this decision is going to come back and bite you and it has big-time.
RASCHIf we can enable privacy now, either by Congress or through the Supreme Court decisions on the Fourth Amendment, we open up all kinds of possibilities of people being willing to go out to the cloud. We open the possibility of cars being able to talk to each other so that they can avoid traffic without worrying that the FBI or somebody else is going to be monitoring. So privacy actually helps encourage e-commerce, advertising, marketing, sales, all kinds of things as long as you trust that the information will be private.
NNAMDIJeffrey Rosen, first to you, the question about the police, what will this ruling, in your view, mean for police going forward?
ROSENI agree with Mark that whenever there's a high degree of suspicion, you can get a warrant and therefore it was no burden on the police to get a valid warrant, which they could have done in this case. It does mean that they will be less likely to use devices for lower-level crimes. You posed an important question, Kojo. You said, well, how many officers would the police need to actually engage in this sort of search? Justice Alito said, you'd need thousands of officers, you know, around the clock to basically have that kind of ubiquitous surveillance. And in practice, you'd have to be investigating the most serious crime imaginable to have those sorts of resources.
ROSENSo this just means that the police will be less likely to go after low-level offences using these technologies when they can't get a warrant, but any time they can, as they could have in this case, they'll be happy to do that.
NNAMDIWe've talked on this show before about cell phone data and who can gain access to it. How does this decision affect our rights to keep our location and our personal information private, even, as Mark was talking about, if they're easily accessible through our cell phone and other devices?
NNAMDIWhat are the implications? What have you inferred from this decision about me and my cell phone's future life?
RASCHWell, that's exactly the issue is you have to infer from the decision because it doesn't say and that's the problem. But at least the majority of the court, five members of the court, said, look, location is intimate and it's private. Now, Justice Alito pointed out that, you know, if you follow somebody around, you can know that they're going to visit an AIDS clinic. You can know that they're going to visit a criminal defense lawyer. You can know all kinds of things about somebody. And ultimately in the past, our privacy has been protected, not by technology, but by laziness.
RASCHThe truth is the police, you know, you could always follow everybody around. And I think this case was lost by the government when the court asked a very simple question. Could you follow us around? And when the government came back and they said, yes, we can for no reason at all. The court realized this is an important question.
NNAMDIYour take, Jeffrey Rosen, they can follow you around for absolutely no reason at all and given the temptation, it's difficult to resist.
ROSENThe easier it is to follow people around, the more people will be followed. And, you know, the forms of following are going to multiply dramatically so in just a few years, Google and Yahoo expect that they're going to be asked to put live and online all the public and private surveillance cameras in the world. If that happens, there are already Facebook apps that let you look at Mexican beach cameras, which teenage boys like. But imagine if those cameras were linked with subway cams and hospital cams.
ROSENYou could click on to Google StreetView, back click on a picture of me to see where I came from this morning, forward click where I'm going after the show and basically follow my movements 24/7 forever. Would that violate the Fourth Amendment? Well, if the Obama administration's position had prevailed, it wouldn't. The police could use that StreetView tracking and ubiquitously survey people. Now, the court has said, no, we do have an expectation of privacy in public.
ROSENBut the court also signaled it won't have the last word. It invited Congress to act and there are bills pending in Congress. There's a bipartisan bill that Senator Ron Wyden, the Oregon Democrat, and Josh Chavis, the Utah Republican, have proposed that would prevent cell phone companies from disclosing geo-locational data without consumer consent so that would protect your cell phone, Kojo, even more directly and specifically than a court decision.
NNAMDILet me jump overseas for a while. How does this work in London where if you're outdoors, there's virtually a camera on you 24/7 once you're outdoors? How does that work in terms of the privacy that an individual has when he or she is going about, well, his private life happening to be in public?
RASCHWell, what we're doing here is skinning cats and there's more than one way to do it. And that's the whole point of the decision is, if you tell them they can't put a GPS device on, they'll say, all right, I'll use the phone to track them. If you tell them they can't use the phone, they'll say, well, that's okay, we'll just put up cameras and take pictures of people and use facial recognition to know where they are. If you tell them they can't do that, they say, okay, we're going to use web applications.
RASCHSo that's why you really need to address not the mechanism that's used to track people around, but whether they can track you around at all.
ROSENThe Europeans do have a very important proposal, though. It came out this week and Viviane Reding , the European Union's Privacy Commissioner, has proposed a dramatic new right. She calls it a right to be forgotten and it was originally proposed by the French. It sounds very French, you know, it's like out of Sartre, existentialism. But the idea is you should have the right to delete any data that's held about you by a third party and after a certain point, if you have a youthful criminal offense or something discreditable in your past, you should be able to force Google and Yahoo not to index that in the future.
ROSENI think American courts would say that poses grave threats to free expression because our Supreme Court is not allowed people, selectively, to delete their past. But we may see a big clash between the European emphasis on data privacy in the private sector and the American preference for free expression.
NNAMDIHere is John in Glyndon, Md. John, you're on the air. Go ahead, please.
JOHNHi, yes. I'm wondering how this effects the technology that the Washington Post has been using -- reporter's been using in the Washington area in regards to tracking cars visa-vie the license plates? There's a camera system, apparently, in the region that will be completed within the next couple of months that basically means that the government, I guess, either federal or local knows what - where every car is in the region. And I -- if your listeners haven't read the article, it wasn’t that long ago. But basically, it allows for (word?) when there was the sniper shootings a few years ago, we would've been able to catch them a lot faster simply by correlating the whereabouts of the vehicle.
RASCHOkay. Well, what he's talking about is an article that was in the Washington Post that showed that virtually, that every entry point of the District of Columbia is equipped with a camera that's capturing the license plate data and maybe more about everybody who goes into the District. And then even within the District, there are cameras that are in real-time capturing and data mining where people are, where those cars are. And it's even worse than that too because the parking meters, the people taking parking -- the parking people are capturing license plates of parked cars as well. So it's not just cars in motion, it's also parked cars as well.
RASCHAnd this shows the inherent tension between the right to privacy and the technology used to invade it. Because -- and the Supreme Court decision sort of evades that whole question because they only talk about attaching a device to the car. What we really need to do in that area is have a discussion -- I don't have a problem with the cameras being there for particular purposes but if the data's got to be deleted at some point, it's got to be removed and we have to have strict limits on who can have access to it and why. But we have to have that debate and we have to -- can't do that just in the background.
NNAMDIAnd finally, here's Karen in Chesapeake Beach, Va. Karen, you're on the air. Go ahead, please.
KARENHi, thank you for taking my call. I just had a couple of quick statements and then a question. It sounds like we pulled in a whole bunch of other issues into the one issue of attaching a GPS device to someone's car to track their movements and their location. And everyone's been referring to him as a suspect, he's a criminal, he's not an average Joe citizen that someone just wanted to find out where he likes to buy his coffee. So the marketing people can, you know, benefit from that, he's a criminal.
KARENAnd could we follow him around 24/7? Could we follow anybody around? I don't think we can. We don't have the resources to. We have to look at the bigger picture here as to why, it's for the general public's protection that was done. And then my question is, we have GPS tracking devices put on ankles of people that are on parole and probation, how come that's allowed and not the car?
RASCHThe caller is absolutely right, that Mr. Jones, in the case, was convicted felon, indeed he was sentenced to life in prison for being connected to a stash house that had 97 kilograms of cocaine and $850,000 in cash, no question about it. However, the cops could've gotten a warrant to track him and they did and they'll be able to do that in the future. How is this different from ankle bracelets? I gather that if you've been convicted of a crime, then you have a reduced expectation of privacy and as a condition of parole or probation, then you can be tracked.
RASCHBut I don't think anyone would suggest that ordinary citizens could have the ankle bracelets against their will. But it wasn't just our conversation that introduced this broader question of the privacy rights of innocent citizens in public, it was the Obama administration as well two lower federal courts that took this extreme view, that innocent citizens don't have any expectation of privacy in their public movements.
RASCHThat was unnecessary for them to have won this case and it forced the court to respond by rejecting that claim and saying, that's not true, that even if you have done nothing wrong, you have an interest in not being tracked 24/7 because you might be more inhibited and less free if the government could track you without some (unintelligible) ...
NNAMDIAfraid that's all the time we have. Jeffrey Rosen, thank you for joining us.
NNAMDIJeffrey is a professor of law at George Washington University Law School and legal affairs editor for the New Republic. He's co-editor of the book "Constitution 3.0: Freedom and Technological Change." Mark Rasch, thank you for joining us.
RASCHWell, thank you, Kojo.
NNAMDIMark is director of Cybersecurity and Privacy Consulting at CSC. He's a former federal prosecutor. We're going to take a short break. When we come back, we'll be joined by former Chilean President Ricardo Lagos who will tell us what it was like to stand up to Augusto Pinochet and then go on to become president himself. I'm Kojo Nnamdi.
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