Right To Privacy

Strict Constitutionalism, interpreting the United States Constitution strictly within its initial understanding and context, is a judicial philosophy has increasingly held sway in the United States and is reflected in the judges appointed by both Presidents Bush. This week the United States Supreme Court heard arguments in a case which not only demonstrates that the shortcomings of that philosophical position but the outcome will have major significance to the nature and future of a person’s right of privacy.

The police secretly installed a GPS tracking device to the car of Jones, a man they suspected to be a major drug dealer. For a month from afar and well out of sight the police tracked Jones’ movement. His vehicle became a 24/7 surveillance tool of the police. The police did not need to task teams to watch and follow Jones. After a month the tracking led the police to a large cache of cocaine.

In United States v. Jones, Jones is arguing that the government improperly and without a court issued warrant invaded his privacy. The government argues that they did not need to have a warrant as that provision only pertained to tapping telephone calls, and besides Jones was moving along public roads and functioning various other tasks in other public space.

On the surface the government’s argument seems logical. Using such devices frees up resources and saves the tax payers money. The government no longer needs to task a dozen or more officers to follow suspects in cars and wait outside buildings watching for a suspect to leave. Now the police can place a device on a car, allow a computer to track movements and have one officer review in minutes a day’s worth of movements. One officer could monitor hundreds of people’s movements, instead of it taking many to monitor one.

Forty something years ago when the Supreme Court ruled that wiretaps were required, similar arguments to those of today’s government were used. Today’s Court is facing the ramifications of modern technology and processes that were never dreamed as possible by the original authors of the Constitution. Holding to a strict reading and holding to original context would do a disservice to the Constitution and common sense. The Court was established for the purpose of not as a bulwark against change but as a vehicle to make rulings in light of fundamental principles within an evolving social, political and technological context.

Privacy is a fundamental principle. At issue is whether technology like cell phones, GPS devices, computers, online monitoring, can be used to negate a person’s privacy within a free society. The Court has long held that it is a reasonable expectation for a person to hold that their telephone conversation is private. In its telephone wiretap ruling the Court ruled that as a check against widespread and unwarranted listening to our private conversations. Once again the Court is dealing with these issues. If the Court accepts the government’s position, there is nothing to prevent the government from using our cell phones, OnStar, car engine monitoring devices, GPS devices and other current and future technologies to track our movements second by second. If the government wins, employers and others could then do the same. In short, the Fourth Amendment’s right of privacy will become minimal.