Keeping Watch on the Detectives

In September 2005, federal law enforcement agents in the District of Columbia suspected Antoine Jones, a local nightclub owner, of drug trafficking. Without a valid warrant, they installed a Global Positioning System (GPS) device on his car, and monitored it around the clock for four weeks. The monitoring led to the discovery of substantial amounts of cocaine. Jones was convicted of conspiracy to distribute the drug, and sentenced to life imprisonment.

The US Court of Appeals for the D.C. Circuit ruled that the GPS monitoring of Jones’s car was a warrantless search in violation of the Fourth Amendment, and reversed his conviction. The Obama administration sought review in the Supreme Court, contending that such monitoring invades no privacy, and therefore requires no warrant, no probable cause, not even any specific suspicion of wrongdoing. On November 8, the Court heard arguments in the appeal; a decision is expected by June.

United States v. Jones is the most important privacy case to reach the Supreme Court in years. It requires the Court to decide whether the Fourth Amendment’s safeguards remain meaningful in the digital age, when widely available technological innovations—including GPS devices, cell phones, computer data-mining programs, and the like—make it possible to watch citizens more intimately and comprehensively than was remotely conceivable when the Bill of Rights was adopted.

These devices give the state the Orwellian ability to follow virtually every movement people make and their every keystroke at the computer. If, as the Obama administration would have it, the state can engage in such monitoring without first developing any objective basis for suspicion, privacy may become as “quaint” and “obsolete” as then White House counsel Alberto Gonzales once characterized the Geneva Conventions. As Justice Stephen Breyer observed during the oral argument, the administration’s theory would allow the state to use GPS devices to monitor “twenty-four hours a day the public movement of every citizen of the United States.” Or as Chief Justice John Roberts put it, bringing the point even closer to home, nothing would stop the FBI from using GPS devices to monitor the justices’ own vehicles.

The Jones case arises from the ongoing “war on drugs,” which has simultaneously made the United States the uncontested world leader in per capita incarceration, prompted the radical dilution of Fourth Amendment protections, and done little to limit the ready availability of drugs. But the issues Jones presents are equally pressing with respect to that other war, the “war on terror,” which continues despite the Obama administration’s jettisoning of the label.

The Fourth Amendment’s core requirement that the state obtain a warrant based on “probable cause” before conducting a search is what protects the privacy of our homes, thoughts, and relationships from prying government surveillance. But it poses a challenge to both anti-drug and anti-terrorism efforts. “Probable cause” is generally defined as “a reasonable belief that a person has committed a crime” or that evidence of a crime will be found. Drugs are relatively easy to conceal, and practically all participants in a drug transaction or terrorist conspiracy will seek to avoid scrutiny, making it difficult for the authorities to develop the basis for such a reasonable belief. When “war” has been proclaimed, privacy begins to look like an all too abstract luxury.

The specific question posed in the Jones case concerns whether the use of a GPS to monitor a car’s movements for an extended period is a search subject to the Fourth Amendment. (The Fourth Amendment’s requirement of a warrant based on probable cause applies only if the government conduct constitutes a “search” or “seizure.”) The broader issue presented, however, is how privacy should be conceived in the digital age.

Should the fact that your cell phone company knows and records your location at any given moment mean that the government should be free to demand that information without satisfying Fourth Amendment requirements? Should the long-standing police authority to search an individual upon arrest include reviewing all the texts and e-mails stored in his “smart phone”? Should customs officers’ authority to search luggage without establishing any cause for suspicion at the border extend to laptop computers, which contain infinitely more private information than most of what could have been carried across the border when the “border search” doctrine was first created?

Before the GPS, if police wanted to know where an individual traveled for a month, they would have had to assign twenty-four-hour surveillance teams to attempt to track him physically, a prohibitively expensive and probably impossible task. Now they just attach a GPS monitor to his vehicle and make sure it has long-lasting batteries. Because it is so inexpensive, and operates without human intervention, the GPS makes dragnet surveillance possible. How should Fourth Amendment doctrine respond?

The Supreme Court has not been particularly swift at adapting to changes in surveillance technology. It took the Court about fifty years, for example, to rule that wiretapping a telephone is a search covered by the Fourth Amendment. The Court initially reasoned that a wiretap is not a search because it does not physically invade one’s property. But in 1967, the Court changed course, announced that the Fourth Amendment protects “people, not places,” and concluded that any official action that intrudes upon a “reasonable expectation of privacy” is a search. That decision, Katz v. United States, was praised for bringing the Fourth Amendment into the twentieth century.

Since then, however, the Court has often taken a crabbed view of what constitutes a “reasonable expectation of privacy,” rendering the Fourth Amendment increasingly inapplicable to government intelligence-gathering. Some courts have ruled, for example, that because a GPS records only information that is already public—the comings and goings of an automobile on public streets—the owner has no “reasonable expectation of privacy” justifying Fourth Amendment protection. The Supreme Court accepted a similar rationale in 1983, holding in United States v. Knotts that placing an electronic beeper in a container in order to monitor it after it was purchased from a chemical company and driven to a remote cabin did not invade any expectation of privacy, and therefore did not require a warrant.

The D.C. Circuit in Jones concluded that there is a qualitative difference between tracking a car on a single journey from point A to point B and monitoring its every movement on a twenty-four-hour basis for four weeks. The latter discloses a great deal more private information about an individual, the court noted:

A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups—and not just one such fact about a person, but all such facts.

In addition, while the beeper in Knotts merely assisted the police in manually following the car from point A to point B, the GPS enables unlimited automatic tracking without human intervention. Thus, while each distinct movement of Antoine Jones’s car was theoretically observable without technological enhancement, the sum total of information gleaned from the GPS was not; for all practical purposes, it could be obtained only by means of the GPS monitor, and therefore intruded on a “reasonable expectation of privacy,” triggering the Fourth Amendment’s requirement of a warrant based on probable cause.

The Jones case may have implications for other technologically enhanced surveillance as well. The Supreme Court has long ruled, for example, that we forfeit our expectations of privacy with respect to information we share with third parties, permitting the government to obtain that information without a warrant or probable cause. On this rationale, the Court has permitted the police to rummage through garbage, obtain bank records, and equip informants with a hidden recording device without any objective basis for suspicion or judicial oversight.

In today’s world, this principle has vast repercussions for privacy, because unless one lives as a hermit, virtually everything one does requires sharing information with a third party—whether a credit card company, Internet service provider, phone company, bank, or pharmacy. Computers make it feasible for all these entities to keep accurate and easily accessible records of such transactions, and for the government to collect and analyze the data. Because of the “third-party disclosure” rule, the Fourth Amendment at present provides no protection for that information.

Suppose the Supreme Court were to recognize that a warrent were required for extended GPS monitoring, by virtue of its ability to collect and aggregate personal information not otherwise practically obtainable without human intervention. It might follow that computer data mining, in which the government similarly uses technological means to collect and aggregate lots of otherwise unprotected information to draw a detailed picture of an individual’s private activities, should also require prior judicial approval. Border searches of laptops and police use of cell phone tracking records and devices might similarly deserve Fourth Amendment protection. But if, by contrast, the Court declines to take account of the threats technology poses to our privacy and rejects Jones’s claim, the Fourth Amendment may well be on the way to being superseded by technology. The Constitution would no longer have much of a role in preserving a sphere of privacy from government oversight.

Such questions have increasingly occupied the attention of lawyers, scholars, law enforcement officials, and journalists. In One Nation Under Surveillance, Simon Chesterman, a law professor at the National University of Singapore and New York University, maintains that privacy is already a dead letter, and proposes that we concentrate instead on regulating the government’s use of the information it gathers, rather than futilely seeking to control surveillance itself.

He argues convincingly that the specter of catastrophic terrorist attacks creates extraordinary pressure for intrusive monitoring; that technological advances have made the collection and analysis of vast amounts of previously private information entirely feasible; and that in a culture transformed by social media, in which citizens are increasingly willing to broadcast their innermost thoughts and acts, privacy may already be as outmoded as chivalry.

Chesterman’s fears are well founded, at least with respect to the United States. In 2010, The Washington Post reported that

the top-secret world the government created in response to the terrorist attacks of Sept. 11, 2001, has become so large, so unwieldy and so secretive that no one knows how much money it costs, how many people it employs, how many programs exist within it or exactly how many agencies do the same work.¹

The Post found that 1,271 government organizations and 1,931 private contractors are engaged in national security-related work, and that more than 854,000 people have “top-secret” security clearances. Most or all of what these people and entities do is hidden from public view, but many of them, we can be sure, are watching us.

Moreover, they are aggressively developing and deploying the latest technology to do so. The New York Times revealed in 2005, for example, that President Bush had secretly authorized the National Security Agency to conduct warrantless wiretapping of US citizens’ telephone and e-mail conversations, in violation of a criminal statute designed to protect privacy. The NSA reportedly used sophisticated computer programs to sweep up millions of phone calls and sift through them automatically for suspicious words, phrases, or links. When this was revealed, the program was suspended. But the NSA program resumed when Congress amended the Foreign Intelligence Surveillance Act to empower courts to authorize such sweeping surveillance.

Other rules governing surveillance have been substantially eased since September 11. The USA Patriot Act allowed prosecutors to bypass established limits on criminal wiretaps and searches whenever they could say that their investigation was focused on “agents” of foreign countries, organizations, or terrorist groups. The same law expanded the FBI’s authority to use “national security letters” to demand records of citizens’ Web-browsing traffic from Internet service providers without judicial supervision or probable cause.

Attorneys General John Ashcroft and Michael Mukasey each watered down executive branch guidelines regulating FBI counterterrorism investigations, and Eric Holder is planning to dilute them still further. The new rules will reportedly allow FBI agents to rifle through citizens’ trash, search computer databases, and repeatedly assign surveillance squads to track individuals without having any objective basis for suspecting that the person they are investigating has engaged in wrongdoing.

In Chesterman’s view, it is futile to put up much of a fight against the state’s collection of vast amounts of information about our personal lives. The fears of terrorism are too deep, the technology is too advanced, and most people have already been seduced into forfeiting their privacy by Facebook and other modern conveniences. He proposes that we instead create a new “social contract” setting forth the terms under which the government may use such information. But the terms he outlines are frustratingly skeletal, and insufficient to preserve privacy.

Chesterman suggests that intelligence should be guided by three principles: that it be carried out by public authorities rather than private contractors; that it be based on law; and that government be held accountable for its uses. There’s nothing objectionable about any of these suggestions. Intelligence operations often involve a great deal of discretion and judgment, and we might well prefer that they be carried out by government agents rather than by profit-seeking private contractors. Actions guided by law are clearly better than lawlessness. And who could be against accountability? But it’s less clear that such a “contract” would really solve the problems of privacy posed by the age of technological surveillance.

Take the use of private contractors for intelligence operations. Seventy percent of the US intelligence budget goes to private contractors, who on average charge twice what it would cost a government official to do the same task. In 2005, the US spent $42 billion for private contractors’ intelligence work. Following revelations that the Halliburton company, which had been awarded a $7 billion no-bid oil-infrastructure contract in Iraq, was wildly overcharging for its services, private contractors are an easy target. But when it comes to the abuses Chesterman identifies—rendition of prisoners to torture, coercive interrogation of al-Qaeda suspects, and warrantless wiretapping—the problems were not the use of private contractors, but the fact that government officials expressly authorized their actions. These policies would have been just as objectionable had they been carried out exclusively by public authorities.

Chesterman also argues that legal regulation should focus less on the collection of data than on its use by government agents. But he is vague about what such restrictions on use should be. More fundamentally, if we give up on limiting collection, what is left of privacy? The invasion of privacy occurs when the government gains access to information we think it should not have; how it then uses the information is less a matter of privacy than of other concerns, such as discrimination, retaliation, due process, and the like.

George Washington University law professor Daniel Solove shares Chesterman’s concern with the ever-diminishing part that constitutional law is playing in preserving privacy. The first part of his book, Nothing to Hide, succinctly and persuasively debunks the arguments that have contributed to privacy’s demise, including the canard that if you have nothing to hide, you have nothing to fear from surveillance. Privacy, he reminds us, is an essential aspect of human existence, and of a healthy liberal democracy—a right that protects the innocent, not just the guilty. Without a sphere in which we are left alone, we cannot develop the intimacy needed for a fulfilled life, or engage in the kind of confidential communications and associations essential to vigorous political criticism and dissent. As Justice Breyer asked at oral argument in the Jones case, “What would a democratic society look like if a large number of people did think that the government was tracking their every movement over long periods of time?”

In 1956, at the height of McCarthyism, the sociologist Edward Shils wrote that liberal democracy demands privacy for its citizens and transparency from its government. Citizens cannot freely dissent if the state is always listening, and their judgment will not be adequately informed if the government acts under the veil of secrecy. Yet today, it is the citizenry that is increasingly transparent, while government operations are shrouded in secrecy.

Solove’s solution is to reinvigorate judicial constraints by offering a new interpretation of the Fourth Amendment. He suggests that courts should not ask whether government access to an individual’s web-browsing data, for example, invades a “reasonable expectation of privacy,” but whether it “causes problems of reasonable significance,” an intentionally expansive term designed to encompass, among other things, the potential for illegitimate targeting of government critics. Any government action that poses such “problems,” he suggests, should be subject to Fourth Amendment regulation by courts, regardless of privacy.

Solove is surely correct that the Court’s view of privacy is outmoded and unjustifiably narrow. But a Supreme Court already hostile to Fourth Amendment review is unlikely to look with favor on the suggestion that it apply the Fourth Amendment to any intelligence-gathering that presents “problems of reasonable significance.” The Fourth Amendment demands only that “searches and seizures” be reasonable, not that all government action be reasonable. Inviting the court to oversee all “problems of reasonable significance” is not a sufficiently precise, realistic, or persuasive alternative.

Solove’s incisive critique of existing Fourth Amendment doctrine points to a better response. He maintains that the Court’s “all or nothing” approach to privacy is too stark. It leads the Court to conclude that virtually any information derived from public sources is beyond Fourth Amendment regulation, even if it takes extraordinary technology to obtain it. And similar reasoning underlies the Court’s “third-party disclosure” rule, which gives the government unrestricted access to information shared with a third party. A more nuanced approach, in my view, would retain the Court’s focus on “reasonable expectations of privacy,” but would recognize that privacy should encompass information that the government could not realistically obtain without resort to technological innovation that enables sweeping surveillance without human intervention—such as, in the Jones case, our precise physical location over extended periods of time.

Similarly, the fact that in surfing the Internet or sending e-mail we share information with Google should not mean that we thereby automatically consent to share it with the government. The state, unlike Google, can deprive us of our liberty, and is more likely to punish dissent; sharing information with Google and with the government are therefore qualitatively distinct acts. The way to Fourth Amendment reform, in other words, is not to abandon the concept of privacy altogether, but to update it, much as the Court did with respect to wiretapping in 1967.

On August 22, US District Court Judge Nicholas Garaufis did just that, ruling that even though cell phone users automatically transmit their physical location to their phone service provider, the third-party disclosure rule should not apply, and a warrant should be required before the government can obtain such records. As Judge Garaufis wrote,

the fiction that the vast majority of the American population consents to warrantless government access to the records of a significant share of their movements by “choosing” to carry a cell phone must be rejected. In light of drastic developments in technology, the Fourth Amendment doctrine must evolve to preserve cell-phone user’s reasonable expectation of privacy.²

David Shipler is not a lawyer but a journalist. Where Chesterman and Solove propose new legal concepts, Shipler offers provocative real-life accounts of how privacy has been sacrificed in the modern era. The outlines of some of the stories he tells are familiar, such as the arrest of Brandon Mayfield, a Muslim lawyer in Portland, Oregon, whose fingerprint the FBI erroneously “matched” to fingerprints from the Madrid train bombing in 2004. But Shipler tells these stories with a wealth of fresh detail. One feels almost as if one is living with the Mayfield family as they are subjected to repeated government break-ins, wiretapping, and ultimately their father’s wrongful arrest. Mayfield was freed only when Spanish authorities, who had disputed the FBI “match” from the outset, positively identified the fingerprints as those of an Algerian man. The FBI eventually paid Mayfield two million dollars to settle a lawsuit against it.

Other stories are less familiar. The book’s most disturbing chapters recount Shipler’s nighttime “ride-alongs” with officers from the Gun Recovery Unit in the District of Columbia’s high-crime neighborhoods—located only a few miles from the Supreme Court but, for all practical purposes, as Shipler puts it, in “another country.” Shipler vividly describes a world wholly foreign not only to Supreme Court jurists but to most Americans, in which police routinely subject young black men to intrusive confrontations and searches of questionable legality. The officers’ tactics, exploiting every loophole the Supreme Court has wittingly or unwittingly created, would provoke loud protests if employed against residents of the District’s wealthier neighborhoods. But the young African-American men who are their nightly targets have little recourse other than simmering resentment.

Shipler’s goal is not to reformulate legal doctrine but to show us, through the experience of Americans subject to intrusive police tactics, where existing doctrine has left us; we live in a world where a federal judge can resignedly say, as Shipler quotes US District Judge Paul Friedman, “I don’t think that there’s much left of the Fourth Amendment in criminal law.” As Shipler deftly illustrates, the dual wars on drugs and terror have brought us to this point. Time and again, constitutional law has bent to the imperatives of the state in conflict.

If there is any prospect of change here, it is that protections of rights grow out of the experience of abuse. The international human rights revolution was partly a reaction to the horrors of World War II; the right of equal protection in the United States was defined in response to slavery, the Civil War, and segregation. Reform comes only when the public demands it, and the public demands it only when abuses are disclosed—as happened in the 1970s after a congressional committee headed by Senator Frank Church revealed widespread government spying on peace groups and civil rights activists. The most important contribution these three books make is to reveal and diagnose the problem. It is up to us to demand a solution.

There have been a few such moments since the events of September 11, 2001. Many citizens objected to a Bush administration plan to recruit home delivery employees as government spies, and Congress barred funding of the program. Concerns about the Patriot Act raised by librarians and others led to reform of the “gag rule” that effectively banned librarians and businesses from mentioning, let alone resisting, government demands for information about their patrons. Revelation of the NSA spying program prompted Congress to impose judicial oversight. And the recent controversy in London regarding the Murdoch empire’s hacking of phone messages of ordinary victims of extraordinary tragedies has the potential to drive further reforms. If the right of privacy is to survive, it will be because citizens, enraged by stories like those Shipler tells, recognize that it is not enough to shrug one’s shoulders and say, “I have nothing to hide.”