The Department of Transportation is considering a disturbing new rule that could force every commercial motor vehicle to install an electronic device that would wirelessly transmit location data and other personal information to police on demand.
By collecting data on each of the 12 million commercial vehicles on the road, the thinking goes, these monitoring devices could help law enforcement focus its inspections on carriers it deems "high risk," allowing lower-risk vehicles to skip unnecessary inspections.
But truckers already undergo roadside inspections and record large amounts of information for regulators. The Department of Transportation offers no reason to believe the warrantless collection of identifying information will make anyone safer. It might make some inspectors' jobs easier, but that is no reason to override the rights of truck owners and operators. One might as well call for putting us all in ankle monitors, just because it might reduce crime if the cops know where everyone is all the time.
The Fourth Amendment requires the government to get a warrant before encroaching into private space to gather information. People rightfully expect that their private effects and location data will remain shielded from the authorities, because prolonged tracking can reveal intimate details. The Constitution protects that expectation of privacy by requiring officers to get a warrant based on probable cause before they can gather location data.
When the government accomplishes that surveillance by physically intruding onto private property, it creates even greater constitutional concerns. The Supreme Court has ruled that police must get a warrant—regardless of whether the subject of a search has a reasonable expectation of privacy—before they physically install a tracking device. The rule is no different just because the government forces people to purchase and install the tracking device on their own property.
Unfortunately, this proposal is not an outlier. Government agencies nationwide have been adopting new surveillance technologies, hastening our devolution into a police state.
One town in Michigan uses drones to photograph people's backyards. Houston passed a law earlier this year requiring all bars and convenience stores to install high-def surveillance cameras, to store the footage for 30 days, and to turn over footage to the police on demand, without a warrant. A town in Florida even created a secret formula that it claims can help predict future crimes. Unsurprisingly, police have employed that formula to target and harass innocent people at all hours of the day and night.
The requirement to track commercial motor vehicles wouldn't even be the first regulation of its kind. The Department of Commerce, for instance, already compels all charter boats in the Gulf of Mexico to install tracking devices.
The Institute for Justice, the public-interest law firm where I work, has responded to the Department of Transportation's proposal by filing a comment letter explaining the constitutional issues that arise when the government forces people to install a transponder or other electronic monitoring device that law enforcement can query for personal identifiable information and location data.
As new technologies make it easier to collect and analyze data, the government will be tempted to prioritize efficiency over privacy. But the Fourth Amendment is clear: Before officials can collect any information beyond what they can see for themselves from public places, they need to get a warrant.