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Clearspeak: Big Brother is watching you

— One blogger writing about the Jones case framed the issue in terms of private property, reflecting the Fourth Amendment’s origins in the law of trespass. If the police can attach a GPS tracker to my car and not be guilty of trespass, he asks, can I find the device and sell it without being guilty of theft?

Good question.

Two federal appellate courts have upheld the use of GPS devices without warrants in similar cases, on the theory that we don’t have an expectation of privacy in public places.

Traditional Fourth Amendment judicial doctrine requires the person complaining of an illegal police search to have an expectation of privacy in the area searched.

This is why drugs left in “plain view” on the front seat of your car, for example, are not subject to Fourth Amendment protection if the cop who pulls you over for speeding spots them.

In Jones’ appeal of his conviction, Judge Douglas H. Ginsburg of the federal appeals court in Washington, D.C., held that we do have an expectation of privacy in public places over the course of an extended period.

“Unlike one’s movements during a single journey,” Judge Ginsburg wrote, “the whole of one’s movements over the course of a month is not actually exposed to the public [i.e., remains private] because the likelihood anyone will observe those movements is effectively nil.”

In other words, Judge Ginsburg, in ruling against the government on Fourth Amendment grounds and voiding Jones’ conviction, decided there is a qualitative difference between a traditional stake out and a month-long, GPS-enabled surveillance, and that this is so because the latter depends on technological enhancements not subject to the normal rhythms of human surveillance.

Police tailing a suspect’s car get tired; a GPS tracking device does not. Judge Ginsburg effectively ruled that you have a right to expect privacy in your public movements beyond the period a reasonable person would expect human surveillance to endure.

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