‘Are Winston and Julia’s cell phones together near a hotel a bit too often?’
In the preface of the 1983 paperback edition of Orwell’s "1984," Walter Cronkite writes, “It has been said that ‘1984’ fails as a prophecy because it succeeded as a warning — Orwell’s terrible vision has been averted. Well, that kind of self-congratulation is, to say the least, premature. 1984 may not arrive on time, but there’s always 1985.”
In August in a dissent to a denial of a rehearing of a case involving police sneaking onto a suspect’s private driveway and, without a warrant, attaching a GPS tracking device to his car, 9th U.S. Circuit Court of Appeals Chief Judge Alex Kozinski writes, “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.”
Technology is taking a battering ram to the Fourth Amendment that dictates we should be secure in our “persons, houses, papers, and effects, against unreasonable searches and seizures …”
That cell phone you carry is already being targeted by law enforcement, because it either contains a GPS device or can be tracked by cell phone towers off of which it bounces signals. A February Newsweek article reported police were able to find murder suspects by determining whose cell phone was near the murder, and narcotics agents followed a drug shipment as the driver’s cell phone "shook hands" with each cell phone tower it passed.
Kozinski makes a number of serious and compelling arguments. I’ve selected just a few for presentation here:
The panel authorizes police to do not only what invited strangers could, but also uninvited children — in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there's no limit to what neighborhood kids will do, given half a chance: They'll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people's curtilage. …
There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don't live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it's perfectly clear that he did not expect — and certainly did not consent — to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does. ...
After concluding that entering onto Pineda-Moreno's property and attaching a tracking device to his car required no warrant, probable cause, founded suspicion or by-your-leave from the homeowner, the panel holds that downloading the data from the GPS device, which gave police the precise locus of all of Pineda-Moreno's movements, also was not a search, and so police can do it to anybody, anytime they feel like it. …
In Kyllo, the Court held that use of a thermal imager to detect the heat emanating from defendant's home was a search for purposes of the Fourth Amendment because the then-new technology enabled police to detect what was going on inside the home — activities the homeowner was entitled to consider private. Any other conclusion, the Court noted, "would leave the homeowner at the mercy of advancing technology — including imaging technology that could discern all human activity in the home." …
By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal about us because where we go says much about who we are. Are Winston and Julia's cell phones together near a hotel a bit too often? ...
There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we're living in Oceania.
