Friday, October 8, 2010

GPS Surveillance, Part II - The Dissent

In my last post, I summarized the opinion of United States Court of Appeals for the Ninth Circuit in the case of United States v. Pineda-Moreno.  As I mentioned, Mr. Pineda-Moreno requested an en banc rehearing of arguments, which was denied.  Chief Judge Kozinski wrote a dissent upon that denial, which is available in full here.

His dissenting argument can be divided into two prongs: (1) a citizen's right to privacy, and (2) the limitations which should be placed on law enforcement officers.  But before we get to that, it's worth taking a moment to enjoy the literary reference in the last blistering sentences of his opening paragraph:

"The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory.  1984 may have come a bit later than predicted, but it's here at last."

Right to Privacy
The chief judge is concerned about the erosion of the right of privacy in the curtilage of one's home.  He cites Oliver v. United States for the position that the curtilage is entitled to the same level of privacy as the interior of the home:

"[O]nly the curtilage...warrants the Fourth Amendment protections that attach to the home.  At common law, the curtilage is the area to which extends the intimate activity associated with the 'sanctity of a man's home and the privacies of life,' and therefore has been considered part of home itself for Fourth Amendment purposes.  Thus, courts have extended Fourth Amendment protection to the curtilage."

In some cases, Kozinski points out, whether the curtilage was invaded is a question of fact - the argument is about whether there was an invasion at all.  Here, the government conceded that there was an invasion.  Therefore, Kozinski argues, all rights and expectations of privacy which normally apply to the interior of a man's home should apply as well.

In this case, however, the panel stated the rights and expectations of privacy would apply to the curtilage only if it was separately established that they should apply for some reason.  Kozinski supports his argument with a discussion of limited right to enter another's property.  He mentions postal workers, repairmen, employees of utility companies, gardeners, and delivery men, all of whom have a limited right to enter property for the purpose for which they have been employed or permitted.  Others who have not been granted a right would not be welcome on the property.

In its original opinion, the panel had used the example of neighborhood children, who could have entered the driveway and crawled under Mr. Pineda-Moreno's Jeep to retrieve a lost ball.  Chief Judge Kozinski argues that such children would be uninvited, and often enter another's property for reasons not nearly that innocent or innocuous.  The "urchins," he says, might "jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas."  To allow law enforcement officers to do all of those things just because they are things which unruly children might do "spells the end of Fourth Amendment protections for most people's curtilage."

The few people whose curtilage would not be invaded, he argues, are the wealthy; the poor are not represented in the state or federal judiciary, but that does not mean they are not entitled to the same protections as those who are represented.

Limitations on Law Enforcement
The more controversial of Chief Judge Kozinski's arguments is that proper law enforcement requires human action.  He is troubled by the use in this case of satellite-based GPS tracking devices which "can record the car's movement's without human intervention--quietly, invisibly, with uncanny precision."  He cites the previously-mentioned Knotts case to distinguish the GPS tracker from the beeper used in Knotts:

"The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways....But the beeper could perform no tracking on its own, nor could it record its location."

Kozinski seems to focus on the expectation of the citizen.  He notes the general lack of expectation of privacy when one is in public spaces, but also identifies ways to preserve privacy, even in public:

"By traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed.  But there's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention."

Chief Judge Kozinski notes that technology is improving, and we must account for that.  He is a believer in the original intent of the Fourth Amendment, and feels its protections need to be adjusted to account for ever-advancing technological devices:

"The Supreme Court has recognized that advances in 'police technology [can] erode the privacy guaranteed by the Fourth Amendment.' To guard against this, courts 'must take the long view, from the original meaning of the Fourth Amendment forward.'"

Kozinski seems unconcerned with the reason for one's desire to evade detection and surveillance.  Rather he is opposed to the general erosion of the right to privacy, because it is a slippery downward slope.  Even law-abiding citizens, he seems to indicate, don't want to live in a police state of constant surveillance.

I imagine he's right about that.

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