The Government Can Use GPS to Track Your Moves
That is the bizarre — and scary — rule that now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants — with no need for a search warrant. (See a TIME photoessay on Cannabis Culture.)
It is a dangerous decision — one that, as the dissenting judges warned, could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich.
This case began in 2007, when Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle’s underside.
After Pineda-Moreno challenged the DEA’s actions, a three-judge panel of the Ninth Circuit ruled in January that it was all perfectly legal. More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, decided this month to let it stand. (Pineda-Moreno has pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.)
In fact, the government violated Pineda-Moreno’s privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the “curtilage,” a fancy legal term for the area around the home. The government’s intrusion on property just a few feet away was clearly in this zone of privacy.
The judges veered into offensiveness when they explained why Pineda-Moreno’s driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited. (See the misadventures of the CIA.)
Chief Judge Alex Kozinski, who dissented from this month’s decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people’s. The court’s ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.
Judge Kozinski is a leading conservative, appointed by President Ronald Reagan, but in his dissent he came across as a raging liberal. “There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist,” he wrote. “No truly poor people are appointed as federal judges, or as state judges for that matter.” The judges in the majority, he charged, were guilty of “cultural elitism.” (Read about one man’s efforts to escape the surveillance state.)
The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state — with technology taking on the role of the KGB or the East German Stasi.
Fortunately, other courts are coming to a different conclusion from the Ninth Circuit’s — including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court ruled, also this month, that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.
In these highly partisan times, GPS monitoring is a subject that has both conservatives and liberals worried. The U.S. Court of Appeals for the D.C. Circuit’s pro-privacy ruling was unanimous — decided by judges appointed by Presidents Ronald Reagan, George W. Bush and Bill Clinton. (Comment on this story.)
Plenty of liberals have objected to this kind of spying, but it is the conservative Chief Judge Kozinski who has done so most passionately. “1984 may have come a bit later than predicted, but it’s here at last,” he lamented in his dissent. And invoking Orwell’s totalitarian dystopia where privacy is essentially nonexistent, he warned: “Some day, soon, we may wake up and find we’re living in Oceania.”
I wonder what the judges would say if they found GPS trackers glued to the bottom of their vehicles posting tweets with their coordinates every five minutes.
Any way you look at this, if they didn’t have a warrant (or whatever the paperwork for this would be), this is illegal… Granted he was caught and he was (well pleaded anyway) guilty; but that doesn’t mean the people involved should be given get out of jail free cards, or their actions validated.
Woah this is not cool at all.
Whoa!! Thanks Tricia for the info!!! Wow… we must stand up for our constitutional rights before they are all erased!!! These past years have been erosion after erosion! Time for a “Minuteman Stand”!!! We need to yell like Paul Revere before it’s too late!! We in the Government have an inside opportunity!!
Had to post this here: http://www.youtube.com/watch?v=7YvAYIJSSZY
@Stephen – I could never figure out how Rockwell was able to get Michael Jackson to sing backup for him!
I think he’s Gordy Berry’s son. Record company owner tells you to sing backup you sing backup.
Ahh! Thanks for shedding light on this — figured it had to be something!
Think GPS is freaky Tricia look at what they could be doing to you: https://www.govloop.com/profiles/blogs/cb2-whos-trapped-inside-ips
I like how Chris shows its positive side in disaster response but still wow that’s a little scary.
Wow. You know, it doesn’t really bother me that they would follow us around to try to catch us at something illegal. What bothers me is, who decides if what we’re doing is illegal? Enemy of the State is one of my favorite movies by the way.
I have to agree with Robert…I wonder if the judges would change their minds if they found out they were being tracked by GPS’s on their vehicles for an extended period of time by the DEA, FBI or some other government entity? It’s always a little different if it’s your privacy that’s at stake.
“In framing a government which is to be administered by men over men the great difficulty lies in this: You must first enable the government to control the governed, and in the next place, oblige it to control itself” – Alexander Hamilton; The Federalist; Feb.8, 1788