A Collective Right to Be Secure from Unreasonable Tracking

Privacy and Security

Article Snapshot

Author(s)

David C. Gray

Source

Texas Tech Law Review, Vol. 48, No. 1, pp. 189-206, 2015

Summary

The Supreme Court has ruled that citizens cannot expect activities carried out in public to be private. However, new surveillance technologies use public data to allow broad and indiscriminate surveillance, and should be considered unreasonable searches limited by the Constitution.

Policy Relevance

The police should be required to obtain warrants to use many new tracking technologies.

Main Points

  • In a 1983 case, United States v. Knotts, the Supreme Court ruled that the use of a radio beeper to track a suspect through public space did not amount to a search, and the Constitution did not require police to obtain a warrant to use this technology.
     
  • Physical intrusion by the police into private spaces such as a home or car is no longer needed for many forms of surveillance, such as the use of cell phone location data to track suspects.
     
  • Using data from telecommunications carriers, police could conduct broad, indiscriminate surveillance programs without warrants; In 2013, Edward Snowden revealed massive surveillance of telephone data by the Federal Bureau of Investigation and the National Security Agency.
     
  • Even those who do not carry cell phones can be traced using radio frequency identification devices in passports, credit cards, and consumer goods such as cars and coats.
     
  • The privacy rights protected by the Fourth Amendment to the United States Constitution are collective, intended to protect the people from "general warrants."
     
    • General warrants gave government agents broad license to conduct searches at their discretion.
       
    • Historically, comparatively few colonists were subjected to searches using general warrants, but the existence of such warrants left everyone vulnerable.
       
  • Surveillance by human police officers, even if aided by devices like radio beepers, requires too many resources to threaten the security of people as a whole against unreasonable searches.
     
  • Modern tracking technology is unprecedented in terms of its ability to enable broad and indiscriminate searches; the requirement that police obtain a warrant before using such technologies is needed to protect the security of the people from unreasonable searches.
     

 

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