Eyes in the Sky

Technology and Privacy, fighting it out

The Washington State Supreme Court will soon be deciding if cops in that state need a warrant to track suspects with global positioning satellite (GPS) devices. The question arises from a particularly heinous case where a man murdered his own 9-year-old daughter. Using GPS, the cops were able to trail him conveniently as he returned to gussy up the site where he buried her corpse.

The cops are arguing—and lower courts have already agreed—that in principle this is no different than just following him around to see where he's going, which is perfectly legal without a warrant now. But Doug Klunder, an attorney who filed a brief in this case on behalf of the state American Civil Liberties Union, isn't convinced; he told the Seattle Post-Intelligencer that "there's just something that feels more underhanded about it."

In old cop shows, savvy private eyes and crooks had to master the art of figuring out who is tailing them and who might just happen to be going their way. Maybe scanning your vehicles for GPS implants (and I imagine more and better techniques for doing so will arise and evolve in lockstep with the GPS trackers themselves) will just have to become something that those who really care about their privacy will learn to do. In a coming world rife with radio frequency ID devices, which can keep track of where we are through what products we bought or have on us, what we can easily keep private will become more and more limited.

Technological advances can make principles seem less important than our delicate sense of underhandedness. Sometimes the law changes to recognize this, as in Katz v. United States, the 1967 Supreme Court case that recognized that even if personal property had not been trespassed on, one's privacy interest could still be violated by modern audio surveillance techniques. Though the decision didn't stress the technological aspect so much as considerations of "what [someone] seeks to preserve as private, even in areas accessible to the public," it is a sign that the law's widening ability to intrude and gather information can have legal significance.

Technological advancements have made it so much harder to keep information about ourselves to ourselves that some visionaries like science fiction writer David Brin think that we should readjust our attitudes and learn to appreciate the wonders of a completely open society, with eyes looking not just top-down but bottom-up. Openness and information flow, not secrecy, Brin argues, have been and can remain the key strategies that fortify our quite wealthy and quite free Western society. Certainly, the particular circumstances of this unpleasant case fairly beg supporters of a GPS free-for-all to bring up that ancient battle cry of the nosy: "Only the guilty have reason to fear!"

As Klunder's comment noted, many of us who haven't murdered our daughters would still feel uneasy or violated by the notion of having all our movements tracked by computerized GPS surveillance and record keeping. even if it's in public, and would like to keep the traditional legal bulwarks against unrestricted snooping from cops in place in this arena.

A fellow anonymizing himself as "Sam Cyber" regales us with an account of the strenuous effort one has to put in to really keep personal information private these days. While even his techniques are no protection against GPS, he does try to keep himself out of any databases by living a purely cash-based life. Just use money orders, endorse any check anyone gives you over to people to whom you owe money, patronize anonymous mailing services, make sure no utilities are in your name, and create a private "address" for yourself by nailing up your own mailbox in the mailbox cluster in a trailer park and painting the next highest, unused, number on it. No problem at all, right?

Those as deeply concerned with moving through life untracked and unmolested as Mr. Cyber will have to continue to learn new tricks. The technologies aren't going away, and the police aren't going away. Whether the optimal solution is a change in attitude, as Brin suggests, or a continually ratcheting technological arms race is something we'll all have to decide for ourselves. But court decisions will certainly help shape the social consensus and the legal possibilities. The law ought to recognize that technology can and sometimes should change the way we interpret old-fashioned legal principles. As the frontiers of the possible expand, sometimes the frontiers of the acceptable must contract.