Technology and Law, New York Style

A New York Appellate court has ruled that the police can’t attach a GPS transmitter to your vehicle while it’s sitting on the street and track you as you travel unless they get a warrant first.

You can read about it here.

I hate to say it; but, maybe, the court got it wrong constitutionally. A dissenting justice said: “while ‘I do not care for the idea of a police officer — or anyone else — sneaking under someone’s car in the middle of the night to attach a tracking device,’ the State Police only violated Mr. Weaver’s property rights, not his right to privacy.”

Law moves at the margins. It’s OK for the police to follow you 24 hours a day as you wend your way through public places, writing down where you go and who you see. Once you put your garbage out on the curb, it’s fair game. The constitutional formulation is that you have no expectation of privacy in those circumstances. Property and privacy. They’re closely related, privacy having evolved from property. “A man’s home is his castle,” and so on. On the other side of the equation, it is a constitutional violation to tap your phone and listen to what you say without a warrant (unless you are a member of the Bush Administration).

So where does GPS tracking fall in the continuum? It’s in, or can be attached, to your car, it’s already in your cell phone. They aren’t listening to what you say (we think), they are just saving manpower and using a computer to see where you go and who you see, just a bit more comprehensive than all the cameras sprouting in cities. If you are up to no good in a public place, why is it OK for the police to see you’re up to no good, casing the site of the burglary, rather than knowing you were in the parking lot of burglary targeted store, presumably casing the joint, because the GPS says you were there?

Do we want the government tracking us? Me? No. If we don’t, we should put the matter to the state legislatures and Congress. Leave us alone. And here’s the problem, we won’t; because, there’s no outrage when a guy gets caught doing something he shouldn’t do. Legislatively, it isn’t going to happen. Judicially, it probably shouldn’t happen.