Antonin Scalia

Every Move You Make

How new surveillance technologies threaten privacy


“If you win this case,” Supreme Court Justice Stephen Breyer told the Obama administration’s lawyer during oral argument in U.S. v. Jones last fall, “there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States.” That prospect, Breyer said, “sounds like 1984.”

Fortunately, the government did not win the case. But the Court’s unanimous decision, announced in January, may not delay Breyer’s 1984 scenario for long. Unless the Court moves more boldly to restrain government use of new surveillance technologies, the Framers’ notion of a private sphere protected from “unreasonable searches and seizures” will become increasingly quaint.

The case decided in January involved Antoine Jones, a Washington, D.C., nightclub owner who was convicted of cocaine trafficking based largely on information that investigators obtained by surreptitiously attaching a GPS tracking device to his car. All nine justices agreed a warrant was constitutionally required for this surveillance, but they offered two different rationales.

Antonin Scalia’s majority opinion emphasized the intrusion on Jones’ car. “The Government physically occupied private property for the purpose of obtaining information,” Scalia wrote. “We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment when it was adopted.” 

The majority therefore decided it was unnecessary to resolve the question of whether Jones had a “reasonable expectation of privacy” regarding his travels on public roads. Four other justices, in an opinion by Samuel Alito, said he did, given that investigators tracked all his movements for a monthâ€"a kind of surveillance that can reveal a great deal of personal information.

While Scalia’s approach draws a clear line that cops may not cross without a warrant, it does not address surveillance technologies that involve no physical intrusion, such as camera networks, satellites, drone aircraft, and GPS features in cars and smartphones. If police had tracked Jones by activating an anti-theft beacon or following his cellphone signal, they could have obtained the same evidence without touching his property.

The Court developed the “reasonable expectation of privacy” standard precisely because technologies unknown to the Framersâ€"telephones and eavesdropping equipmentâ€"made it possible to secretly collect sensitive information without trespassing on the target’s property. Until the 1967 case Katz v. United States, the Court held that surveillance of telephone calls did not constitute a search unless it involved a physical intrusion.

But the Katz test is notoriously fuzzy. While Alito thought a month of GPS tracking was clearly a search, for instance, he said “relatively short-term monitoring of a person’s movements on public streets accords with expectations of privacy that our society has recognized as reasonable.” He added that even long-term monitoring might not require a warrant “in the context of investigations involving extraordinary offenses”â€"a loophole big enough to drive many GPS-tracked vehicles through. 

Furthermore, the very technologies that threaten privacy also change people’s expectations. “Even if the public does not welcome the diminution of privacy that new technology entails,” Alito wrote, “they may eventually reconcile themselves to this development as inevitable.”

But as Alito noted, there is another possibility: A public alarmed by the erosion of privacy can demand statutory limits on government surveillance, which then provide clear evidence of expectations “our society has recognized as reasonable.” That is ultimately what happened with wiretapping, although only after the Court decided Fourth Amendment rights were at stake.

There is a chicken-and-egg problem here that reflects the circularity of the Katz test: Privacy is expected when it’s protected, and it’s protected when it’s expected. We need to expect more, or we will end up with less. 

Senior Editor Jacob Sullum is a nationally syndicated columnist.

© Copyright 2012 Creators Syndicate Inc.

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47 responses to “Every Move You Make

  1. The problem is the “reasonable expectation of privacy” standard the Supreme Court has adopted. As technology becomes more universal and literally every move you make is recorded someone by something, your expectation of privacy diminishes. So there is more to it than just “well this is a private party doing it so the 4th Amendment is not implicated”. Oh yes it is.

    1. Simply define “reasonable expectation” to mean “no (fuck you, that’s why)”, and the problem is solved.

      1. That isn’t how it works. It is basically what the court thinks the average person would expect. So if the rest of the world gives up their privacy, you are fucked.

        1. If I take steps to protect my privacy, and someone else takes steps to overcome that, seems like that’s an invasion of privacy, even if everyone else is okay with that type of public scrutiny.

          1. Seems that way. But when enough of the rest of the world doesn’t take those steps, some court comes along and says your expectation is not reasonable anymore.

          2. If I take steps to protect my privacy, and someone else takes steps to overcome that, seems like that’s an invasion of privacy, even if everyone else is okay with that type of public scrutiny.

            You are familiar with HIPAA, Pro’L Dib, no?

        2. …particularly describing the place to be searched…

          If they attached a GPS device, without knowing where he was going, how can they meet the above requirement?

          1. They are “searching” the car. Surveilling, really.

            Not for nothing, but Scalia’s approach makes more sense, because otherwise garden-variety following activities would be deemed “intrusions into privacy” which, if you are being followed by the police on public roads, seems like total nonsense to me.

            1. This seems to be where the technology argument comes in. I don’t think that the police can’t follow people around, but at least if they have to do it in person, there is a theoretical limits on how many people they can follow around.

              Sort of the distinction between pulling someone weaving to see if they are drunk, and stopping everyone with a checkpoint to see if a portion of them might be drunk.

              1. I don’t think that the police can’t follow people around..

                Actually, I think if the police are going to follow you around as part of an on-going investigation, even on public roads, with the intent of gathering evidence, they should be required to obtain a warrant.

                Sorry for the commas, but wanted to differentiate between this and a cop seeing you bust a red light.

                1. That would be optimum, of course, ExN.

                2. “Should be required to obtain a warrant”… based on what? The idea that where you go in public is private?

    2. Much in the same way that regulation can require you to surrender information to a third party and then the government can copy that info without a warrant simply by saying that since you already gave it away you have no right to privacy in regards to it.

  2. The innocent have nothing to fear …. except for empire building swine, misunderstandings, malfeasance in office, etc., etc……

  3. I’d rather watch this:

  4. It’s not the technology, but rather the willingness to parse the 4th in a way that argues away the right to privacy it spells out without ever saying the “p-word” that the literalists insists have to be there.

    1. You have far too much faith in the “law”. You should know that the law is what the people in power say it is.

      1. Well, obviously. But considering we aren’t in an an-cap or miniarchist situation, law is all we have to argue.

        It’s a game they make us play.

        1. But considering we aren’t in an an-cap or miniarchist situation, law is all we have to argue.

          Not to be a jerk, but the law is all we are ever going to have to argue. Even in a minarchist or ancap situation, there is still contract enforcement, the adjudication of crimes, etc.

          1. In a miniarchist situation, the argument at least shifts totally to what the government should be allowed to do, not what we can stop them from getting away with. (Assuming it’s a functional miniarchist state.)

            In an-cap, you are arguing about freely entered into duties, which I think is different than arguing law.

          2. If you realize it’s all a bullshit game, why would you ever be a minarchist and not an anarchist?

            Because the devil you know is better than the devil you do not know.

            Anarchy would be nothing but the period before a winner emerges from the gangs fighting each other for the right to offer “protection”, and with its monopoly on violence declare itself to be government.

            Anarchy is an impossibility.

            And yes, it is all a bullshit game. Best to limit its scope with minarchy, than risk a totalitarian state emerging from anarchy.

            1. God, you people are delusional. You already live in an anarchy ruled by warlords right the fuck now. You’re already there, but you fool yourselves by pretending it’s somehow different because the warlords throw fig leafs to you called “The Constitution” and “rule of law”, all the while ignoring that stuff when it suits them.

              And this bone they throw you is enough for you to go “yeah, it’s not anarchy, because the warlords tell me it isn’t!”

              Enjoy your delusion.

              1. I don’t think the word anarchy means what you think it means.

                Anarchy means no one enforcing the rules through threat of force.

                That doesn’t mean that there are no rules, but there is no one using their monopoly on violence to enforce them.

                So no, we do not live in anarchy.

                Far from it, being that there are thousands and thousands of people with guns enforcing their bullshit rules every day.

                1. Here’s the problem: depending on whom I am talking to, “anarchy” means different things. To you, it means “no force”. To someone else, it means “no technical government”. So let’s get away from the word, because it seems to merely cause confusion.

                  My point, again, is this: we live in a warlord-run system. We always have. Why do you continue to pretend that there is rule of law, or that the Constitution means jack shit?

                  1. To you, it means “no force”. To someone else, it means “no technical government”.

                    What is government other than force?

                    Why do you continue to pretend that there is rule of law, or that the Constitution means jack shit?

                    I don’t. But it does make a handy straw man to flog, doesn’t it?

              2. No, it is you who is delusional.

                Minarchism is not advocated as an alternative to Anarchy, it is advocated as the closest we can ever reach to Anarchy because Anarchy in human societies is impossible to ever achieve.

                Here is the problem with Anarchy, the overwhelming majority of humans **WANT** to be lead, they want a government dictating a framework of what is “right” and “wrong” and they will ALWAYS institute a government when there is an absence of one. Always, no exceptions.

                Now of course you are perfectly free to reject their government and ignore it’s dictates but this freedom does not change the fact that the majorities belief in it gives it the power to punish you for your beliefs and to force your conformity with it’s dictates.

                Advocating for Anarchy makes about as much sense for advocating for the abolition of the laws of Thermo-Dynamics as both are pointless exercises attempting to bend the nature of reality to something we like better.

        2. You are merely supporting my point, NutraSweet. If you realize it’s all a bullshit game, why would you ever be a minarchist and not an anarchist?

          1. If I rejected everything in society that I feel is bullshit, there’d be nothing left.

            Life is putting up with other people’s bullshit. I don’t see you running off to go live in the woods by yourself.

            1. Yes, I just called you White Indian. Haw-haw!

            2. You seem to be actively missing my point. I didn’t say anything about rejecting anything or living in the woods. I asked why you would continue to profess support for a minarchist system while you are simultaneously saying that you think that even that is bullshit.

              Saying that the rule of law is a fiction has nothing to do with running off and living in the woods. It has to do with honestly assessing the true nature of human interaction. I’m not just saying it’s this way; I’m saying it’s always been this way. It’s those of you who continue to insist and pretend we don’t live under warlords, even if we dress up the situation with pretend laws and constitutions and the like, that are delusional.

              1. No, you’re a towel.

                I believe the state to be inevitable, and therefore where the argument such be centered.

                I probably am an anarchist deep down, but I’m also too much of pessimist to think it would last for very long.

      2. That’s a comfy epistemological tautology you have there. You can simultaneously rage while claiming impotence in the face of the encroachment on liberties!

        1. I don’t claim impotence; that’s your jurisdiction. Is the Viagra helping, at least?

          1. BMW has a cure for that as well.


        2. That’s a comfy epistemological tautology you have there. You can simultaneously rage while claiming impotence in the face of the encroachment on liberties!

          As a wise man once said, “Some truths are harder than others…. They are like penises in that respect.”

          1. You know, if by some weird dystopian chance every blog but Reason was destroyed, I wonder what type of future philosophy or even religion might be dreamed up?

            “In the name of The Epsiarch, SugarFree, and the Holy Nicole, we offer thanks to The Warty for sparing us and praises to the Kristen for allowing our emotive outpouring to that most holy of relics, Firefly’s, Adam Baldwin. We offer praise and thanks to the Demonica Archiva and The JW for allowing us to experience both our masculine and feminine sides. And as with all the saints, Sts. Groovus, Baked Penguin, and Pro’L Dib for leading us from the manufactured lie that is most trollsome, sin.

            In remembrance of the fallen soldier, The Angry Optimist, we end our gathering in the The Jacket’s most revered name.”


            1. I wouldn’t spare them. Fools.

              1. I never said “sparing” meant “untouched”.

            2. Drink

              That would be salty ham tears, I assume?

            3. Y’know Doc, leaving me out is one thing, because I have nothing interesting to say. But leaving out J sub D is unpardonable.

              1. You’re right Hugh. I should have been more thoughtful. I left out too many people, and J sub D is inexcusable.

                Subtract me and replace with J sub D.

  5. This sounds like the Baker Street Irregulars were illegal as hell.

    1. That was in England, where they have no such right, as recognized.

      1. They were also characters in a book, which have no rights at all, being fictional and all.

  6. I still can figure out what this still is from. Some flash in the pan TV show?

    1. How dare you insult Baltimore’s only decent contribution to culture since Mencken died.

      Let me guess, you’re a Bushmills man.

  7. recognition all over again. I am not sure the things that I force have done without the type of creative concepts shown by you concerning my issue matter.

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