Column: Gene Policinski, Inside the First Amendment

The First Amendment was not in plain sight Nov. 8 when the U.S. Supreme Court heard arguments over a drug conviction involving police use of a hidden GPS tracking device without a search warrant.

But the court’s decision — expected next spring — will have implications for our First Amendment rights of association and free speech, owing to a legal concept called “practical obscurity.” That’s the notion that although much of our life takes place in plain view and in public spaces, in reality nobody but us has a complete view of our daily comings and goings.

The freedom to associate with others of similar and perhaps unpopular views, and to share controversial political or social concepts, fuels the marketplace of ideas that is essential to a democratic republic. It’s no stretch to see that such meetings and discussions are chilled by the fear that an unbridled “Big Brother” may be watching and recording our every move, without the need to convince a judge that such surveillance is permitted under the law.

The U.S. Circuit Court of Appeals for the District of Columbia, in United States v. Jones, reversed Antoine Jones’ 2008 cocaine distribution conviction on Fourth Amendment grounds — saying police had violated his right to protection against unreasonable search and seizure. D.C. police had used a hidden GPS device they planted on Jones’ car to track his movements “24 hours a day for four weeks.” The tracking information obtained without a search warrant was central to the conviction, the court said.

Government lawyers argued no warrant was needed, citing a 1983 ruling in U.S. v. Knotts, involving a beeper that police used to follow a car. “A person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements,” that opinion held.

But the appeals court in the Jones case said collecting GPS data went well beyond following a beeping signal.

“It is one thing for a passerby to observe or even follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements and chores that make up that person’s hitherto private routine,” the appeals court said.

“The whole of a person’s movement over the course of a month is not actually exposed to the public because the likelihood a stranger would observe all those movements is not just remote, but essentially nil.”

Totalitarian governments such as the former East Germany maintained much of their power over their citizens by creating a system to expose any evidence of dissent or opposition. Elaborate — though by today’s technology standards crude — networks of informants and electronic devices helped create a reported 6 million individual dossiers in the 40 years of East Germany’s existence. That’s about a third of the country’s population.

Though the D.C. police investigation involved suspected drug trafficking, the larger implications of warrantless assaults on “practical obscurity” loom large for our core freedoms.

On Nov. 8, Justice Stephen Breyer told the government’s lawyer that “if you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movements of every citizen of the United States.”

“If you win,” Breyer said, “you suddenly produce what sounds like 1984” — referring to the George Orwell novel in which a fictional dictatorship tracks every moment of each citizen’s life.

Privacy concerns extend beyond the government’s ability to monitor physical movement. Think of the capacity to aggregate all of someone’s data from digitized public records. Official printed documents and paper files on individuals have been legally available to the public for decades, but practically speaking such records were rarely if ever opened or assembled. Just as a person’s daily movements weren’t traceable in their entirety — until now.

As Chief Justice John Roberts put it about the power of GPS surveillance compared with other tracking methods, “You’re talking about the difference between seeing a little tile and a mosaic.”

That’s a view that’s easy to follow.

 

Gene Policinski is senior vice president and executive director of the First Amendment Center, 1207 18th Ave. S., Nashville, Tenn., 37212. Web: www.firstamendmentcenter.org. Email: gpolicinski@fac.org.