Human Property

The Obama Administration is arguing before a federal appeals court that the government can track individuals through their cell phones without a warrant because there is no “reasonable expectation of privacy” in their cell phones’ whereabouts.

Articles in CNet and Newsweek describe the government’s increasing ability to turn a person’s cell phone into a “surreptitious tracking device.”

There are two main ways to track you through your cell phone.  The first is to look at phone records that show the corresponding cell phone towers that connected a specific phone call.  The second is to use the GPS within your phone as a real-time tracking device.

The government is increasingly asking for these records as part of government investigations.  Seattle attorney Al Girdari tells Newsweek that telecommunication companies are now getting “thousands of these requests per month,” and the amount has grown “exponentially” over the past few years.

Last year, a federal judge denied the government’s request for these records and ruled that under the 4th Amendment, a finding of probable cause and the issuance of a warrant was required.

Now, before an appellate court, the government is arguing that a search warrant is not necessary because the records provide “only a general indication of the user’s whereabouts at certain times.”

In examining this issue, an appellate court will look at what society considers its “reasonable expectations of privacy” related to the government activity in question.  This is a flexible analysis where a court really looks at social practices based on technological developments and the impacts of those developments on society.

Back in the old days, if you made a phone call you would either do so from your home or go to a telephone booth.  The fact that you shut the door behind you in a telephone booth was the reason why the Supreme Court found a “reasonable expectation of privacy” in a phone conversation and required a warrant for phone taps in the 1967 case Katz v. United States.

Today, people use cell phones out in the open and talk all over the place.  This is purely a function of new technology:  phones are portable and don’t need wires.  Is there a lower “reasonable expectation of privacy” with cell phones just because you can use them anywhere?  The Obama Administration believes so.

Is it really the case that our Constitutional rights can change so much — and in such a small historical period of time — simply because of new inventions?

Then again, when it comes to privacy, how else can you determine what people think is “private” without looking at current attitudes and behaviors?

Reasonable people may disagree on societal expectations of privacy, but government should always err on the side of more privacy protections and not less.  The Obama Administration’s stance on this issue is disappointing.  Police are entitled to adequate tools to conduct their investigations, but the requirement of a warrant is hardly an impediment towards those aims.  Judicial scrutiny of government action is the hallmark of a functioning democracy.  If the 4th Amendment has any real weight in our technological society, it would surely prevent a government official from tracking you through your cell phone without a warrant just because you might bear some relevance, however tangential, to the investigation of a crime.

Do airport body scanners infringe on privacy rights?

The question isn’t really easy to answer.  Any court analyzing this question would have to look at a society’s “reasonable expectations” of privacy.

California has some of the most robust privacy protections in the country, so looking at its law is instructive.  The California Constitution guarantees an “inalienable right[]” in attaining and preserving one’s privacy.  Cal. Const., art. I, § 1; Hill v. National Collegiate Athletic Assn. (1994) 7 Cal.4th 1, 16.  The California Constitution protects individuals from intrusions of privacy both by the government and by other people or businesses.

A plaintiff asserting a privacy claim based on the California Constitution must establish:  (1) a legally protected privacy interest; (2) a reasonable expectation of privacy; and (3) conduct on the part of the defendant constituting a serious invasion of privacy.  Hill, 7 Cal.4th at 35-37, 39-40.

In talking about body scanners, (1) and (3) are a no-brainer.  People have a protected privacy interest in keeping others from inspecting their naked or unclothed bodies.  And there is no doubt that the body-scanners themselves invade this privacy.

The real issue is (2).  What is the expectation of privacy these days with regard to plane travel?  Are people prepared to virtually disrobe in order to board a plane?

Does the mere fact that you consent to board an airplane relieve you of your constitutional rights?

Advocates of body scanners might say that we “live in a dangerous world” and that the scanners are necessary to ensure passenger safety.  For these advocates, scanners are the best way to check to see if someone is carrying contraband without asking them to actually disrobe.

On the other hand, how much privacy are we willing to get rid of on account of terror attacks?  This is the real question we have to ask ourselves.

There is also the question as to what, exactly, these body scanning machines can actually do.  The TSA admits that its own policies require body scanning technologies to have storage and transmission capabilities.  Are people comfortable knowing that the scans of their bodies may be held in a government database?

And at some point, it will be worth asking:  Why is it, exactly, that sends young Arabs and Africans onto planes armed with explosives?

Answering that question may obviate the need for all these security measures in the first place.

Until then, we may be looking at increasingly less privacy anytime we want to board an airplane.