Chilling [Updated]

Well, this is not good.

On Friday, the first federal appeals court to consider the topic will hear oral arguments [] in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.

Bold emphasis mine.  Unfortunately as a matter of precedent the DOJ probably has a legal leg to stand on by analogizing a cell phone’s whereabouts to “Pen Registers,” a la Smith v. Maryland. In Smith v. Maryland, the government installed a “Pen Register,” at a telephone company’s headquarters. Pen registers create switchboard records of a particular phone line (who you called, when) but don’t record conversations.  The Supreme Court held that the warrantless installation of pen registers (and the introduction of pen register records as evidence) do not violate the Fourth Amendment. The Court reasoned that telephone users don’t have an objectively reasonable expectation of privacy because pen registers don’t intrude on the conversation itself, and the phone user voluntarily turns over the information (who he called and when) to the phone company.  As such, the government can access pen register records without a warrant.

The DOJ is probably arguing that cell phone whereabouts are analogous to pen register record. Put another way, spot the difference between warrantlessly tracking a cell phone’s whereabouts and warrantlessly accessing calling records. Like land-line telephone users, cell phone users are aware phone’s can be tracked, have the option of turning off the phone, and the government is not intruding on actual conversations. You can extend that argument quite a ways, too.

For instance, what’s the difference between tracking cell phone whereabouts and a cop following a vehicle all day long? If it’s OK for a cop to warrantlessly follow a vehicle to track its whereabouts, what would be wrong with electronically tracking the car’s whereabouts via its GPS, or its occupant’s cell phone? What would be wrong with the government creating a database / system to warrantlessly monitor every person’s whereabouts, activities, and associations 24-7 via their GPS, cell phone, or other electronic device? No one has a reasonable expectation of privacy insofar as their electronic devices are concerned, get it? How about mandating that everyone carry a trackable device? Why not expand the database to warrantlessly track: (a) who you email and when; (b) websites you visit; (c) channels you watch; and (d) movies you netflicks?

I condemn the DOJ for taking the position that the government can electronically track or monitor citizens without a warrant. Warrantless electronic tracking is Orwellian. Widespread, warrantless electronic monitoring will have a chilling effect on freedom of assembly and speech. If the government has sufficient reason to electronically track an individual’s whereabouts the government should be able to prove it has probable cause sufficent to justify a magistrate issuing a warrant.

Just imagine what will happen if the thought police find out that David Brooks regularly reads Steve Sailer’s politically incorrect blog. Off with his head!

Original link via Drudgereport.

Update:

Frankly, it’s comforting when someone with more legal and blogging credibility than me reaches the same conclusion as me. Jim Harper at the Cato Institute expounds on the ‘chilling’ point I made yesterday regarding the DOJ’s argument that warrantless electronic surveillance is A-OK with the Fourth Amendment:

If you have a mobile phone, that’s the upshot of an argument being put forward by the government in a case being argued before the Third Circuit Court of Appeals tomorrow. The case is called In the Matter of the Application of the United States of America For An Order Directing A Provider of Electronic Communication Service To Disclose Records to the Government.

Declan McCullagh reports:

In that case, the Obama administration has argued that Americans enjoy no “reasonable expectation of privacy” in their—or at least their cell phones’—whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

The government can maintain this position because of the retrograde “third party doctrine.” That doctrine arose from a pair of cases in the early 1970s in which the Supreme Court found no Fourth Amendment problems when the government required service providers to maintain records about their customers, and later required those service providers to hand the records over to the government.

I wrote about these cases, and the courts’ misunderstanding of privacy since 1967’s Katz decision, in an American University Law Review article titled “Reforming Fourth Amendment Privacy Doctrine“:

These holdings were never right, but they grow more wrong with each step forward in modern, connected living. Incredibly deep reservoirs of information are constantly collected by third-party service providers today. Cellular telephone networks pinpoint customers’ locations throughout the day through the movement of their phones. Internet service providers maintain copies of huge swaths of the information that crosses their networks, tied to customer identifiers. Search engines maintain logs of searches that can be correlated to specific computers and usually the individuals that use them. Payment systems record each instance of commerce, and the time and place it occurred. The totality of these records are very, very revealing of people’s lives. They are a window onto each individual’s spiritual nature, feelings, and intellect. They reflect each American’s beliefs, thoughts, emotions, and sensations. They ought to be protected, as they are the modern iteration of our “papers and effects.”

This is a case to watch, as it will help determine whether or not your digital life is an open book to government investigators.

UPDATE II:

Excellent legal discussion here on the merits of the government’s case. I liked this comment the best though.

Once again, the government is in the position of killing its parents and asking for mercy as an orphan. Once again, the government is citing as a common business practice an activity that it mandated so as to get around the Bill of Rights.

And once again, here is an activity wherein lawyers have twisted plain English to mean something special, contrary to what the man in the street thinks the words mean, and then act huffy (see many comments above) when questioned.

I have talked to many people about this case. There is not one of them that does not feel that the government is violating privacy, is fundamentally cheating, on this one. Many, though, shrug and feel that the government and the growing police state will get away with it.

What fundamental constitutional busy-bodiness requires that 911 calls always identify exactly where the caller is? I have trouble squeezing this one even into the much abused Commerce clause. Still, the nanny state mandated tracking this information. Then, with this law, the state takes a second pass, and asserts that, because this information is routinely tracked (because they mandated it), then there can be no possible concern in the police state tracking it now, and in the past, with no limits on man-power or vehicles, to them tracking it for everyone at all times.

The founders were literate, and they would have read Milton, who in Paradise Lost wrote

And with necessity,
The tyrant’s, plea, excus’d his devilish deeds.

Or as C.S. Lewis updated the formulation,

“‘Useful,’ and ‘necessity’ was always ‘the tyrant’s plea’.”

This last election cycle saw state employees abusing their authority to harass and discredit private citizens who questioned their favored candidate. Those on the left have claimed that the previous administration can and would do anything, abuse any right to have its way. Those on the right were horrified at rank intimidation of political discourse found in the current administration collecting emails of dissenters. How can those on either side honestly accept the 4th amendment suffering a death of a thousand cuts.

Only a lawyer, enamored with some ill-argued, ill-thought out precedent, could misunderstand that the blind acceptance of any and all intrusions of technology would soon eliminate the 4th amendment entirely. The complete loss of privacy *is* the complete negation of the 4th amendment.

Lawyers can often lose sight of the Constitutional forest for their trees of legal fiction.

Law, Socio-Political