By Carl Tobias |
What is necessarily implied in the Geolocation Privacy and Surveillance Act is that no matter how prescient our forefathers were, it is doubtful they could have conceived of geolocation devices when they crafted the Fourth Amendment to ensure a zone of privacy from government search, seizure, and monitoring. Advances in technology make life more enjoyable for law-abiding citizens, but technology is also used by those who seek to do us harm, as evidenced by identity fraud, counterfeiting, and the theft of intellectual property. So if those who seek to do us harm take advantage of technology, it serves to reason that law enforcement would also use technology to make us safer and to investigate and apprehend the criminal elements.
No one complains when law enforcement uses technology in the form of DNA analysis, fingerprint analysis, voice exemplars, blood spatter, or court-approved wiretapping to investigate and ultimately solve cases. At the same time, technology often outpaces the law, and our fundamental sense of privacy is offended by ubiquitous surveillance simply because technology allows it.
In the old days, law enforcement did surveillance by physically following a suspect either on foot or by car. As a result, law enforcement had to apportion limited resources, and this served as something of a check on the unlimited surveillance of citizens who were not suspected of criminal activity. Stated differently, why would law enforcement officers ride around day after day or follow a citizen on foot simply because they had a hunch?
With advances in technology and the proliferation of geolocation devices, law enforcement can now have a computer track the movement of multiple citizens simultaneously for whom there is no allegation or suspicion of wrongdoing.
To keep pace with the advances in technology, to comply with recent U.S. Supreme Court jurisprudence, and to further safeguard the constitutional dimensions of our privacy, Rep. Jason Chaffetz introduced the aforementioned legislation. My qualm with his legislation is the standard of proof that law enforcement must meet to seek the geolocational information.
Probable cause, required under this legislation, is the same standard of proof required for physical searches, seizures, and arrests. Once an agency has sufficient evidence to seek a warrant based on probable cause for geolocational information under this bill, it necessarily has enough evidence to make an actual arrest of the suspect.
A federal prosecutor named David Stephens frequently told law enforcement agents who approached him about wiretapping applications that if they had enough evidence to obtain a wiretap, they had enough evidence to make an arrest.
So, my recommendation to my friend Representative Chaffetz is to lessen the standard from "probable cause" to an "articulable suspicion." This would provide an important check on any law enforcement agents who are merely "fishing" for information. At the same time, this standard does not require law enforcement to have the same amount of evidence necessary to arrest the suspect to be able to merely follow the suspect. To be sure, under current law, police officers do not need any standard of proof to follow citizens on foot or conduct surveillance by way of a car or airplane on public land. Requiring some level of articulable suspicion dissuades abuse and still allows law enforcement to use the full panoply of tools to protect us from those with criminal intentions.
About Trey Gowdy U.S. Representative from South Carolina
Ron Wyden U.S. Senator from Oregon
Catherine Crump Staff Attorney with the American Civil Liberties Union's Speech, Privacy & Technology Project
Jason Chaffetz U.S. Representative from Utah
Jennifer S. Granick Director of Civil Liberties at the Center for Internet and Society
Joseph I. Cassilly Former President of the National District Attorneys Association