The Government’s New Right to Track Your Every Move With GPS

According to a ruling by the 9th Circuit Court, it’s perfectly acceptable for agents of the federal government to sneak onto your property at night, stick a GPS tracking device to the bottom of your car, and then proceed to track your every move—all without a warrant. The federal court has ruled that Drug Enforcement Administration agents who did just that to an Oregon man in 2007 didn’t violate his rights, because he has no expectation of privacy in his driveway and no expectation that the government won’t track his movements.

This bizarre – and scary – ruling now applies in California and eight other Western states. The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually anytime it wants – with no need for a search warrant. It’s a dangerous decision – one that, as the dissenting judges warned, could turn America into the sort of totalitarian state imagined by George Orwell. It is particularly offensive because the judges added insult to injury with some shocking class bias: the little personal privacy that still exists, the court suggested, should belong mainly to the rich. You see, basically if your car is parked in your driveway and is easily accessible (ie, if it’s not behind the walls of a gated property), you have no reasonable expectation to privacy. Even on your own property, the courts consider the car to be in a public place.

Privacy advocates are understandably upset. Writing in Time, Adam Cohen calls the ruling a “dangerous decision” that “could turn America into the sort of totalitarian state imagined by George Orwell.” Gothamist’s Matt Buchanan also whips out the word “Orwellian,” along with the phrase “slippery slope.” “If it’s okay for the government to plant a GPS tracker on your vehicle in the night, without a warrant,” he writes, why isn’t it “okay to flip the switch on your phone, tracking everywhere it went—after all, if Google can know where you’re at, why can’t the government?”

This case began in 2007, when Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana. They snuck onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home. Then they attached a GPS tracking device to the vehicle’s underside.

After Pineda-Moreno challenged the DEA’s actions, a three-judge panel of the Ninth Circuit ruled in January that it was all perfectly legal. More disturbingly, a larger group of judges on the circuit, who were subsequently asked to reconsider the ruling, decided this month to let it stand. (Pineda-Moreno has pleaded guilty conditionally to conspiracy to manufacture marijuana and manufacturing marijuana while appealing the denial of his motion to suppress evidence obtained with the help of GPS.)

In fact, the government violated Pineda-Moreno’s privacy rights in two different ways. For starters, the invasion of his driveway was wrong. The courts have long held that people have a reasonable expectation of privacy in their homes and in the “curtilage,” a fancy legal term for the area around the home. The government’s intrusion on property just a few feet away was clearly in this zone of privacy.

The judges veered into offensiveness when they explained why Pineda-Moreno’s driveway was not private. It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.

Chief Judge Alex Kozinski, who dissented from this month’s decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people’s. The court’s ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes. People who cannot afford such barriers have to put up with the government sneaking around at night.

Judge Kozinski is a leading conservative, appointed by President Ronald Reagan, but in his dissent he came across as a raging liberal. “There’s been much talk about diversity on the bench, but there’s one kind of diversity that doesn’t exist,” he wrote. “No truly poor people are appointed as federal judges, or as state judges for that matter.” The judges in the majority, he charged, were guilty of “cultural elitism.”

The court went on to make a second terrible decision about privacy: that once a GPS device has been planted, the government is free to use it to track people without getting a warrant. There is a major battle under way in the federal and state courts over this issue, and the stakes are high. After all, if government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state – with technology taking on the role of the KGB or the East German Stasi.

Fortunately, other courts are coming to a different conclusion from the Ninth Circuit’s – including the influential U.S. Court of Appeals for the District of Columbia Circuit. That court ruled, also this month, that tracking for an extended period of time with GPS is an invasion of privacy that requires a warrant. The issue is likely to end up in the Supreme Court.

Plenty of liberals have objected to this kind of spying, but it is the conservative Chief Judge Kozinski who has done so most passionately. “1984 may have come a bit later than predicted, but it’s here at last,” he lamented in his dissent. And invoking Orwell’s totalitarian dystopia where privacy is essentially nonexistent, he warned: “Some day, soon, we may wake up and find we’re living in Oceania.”

Some combination of GPS-related privacy cases will probably be heard by the Supreme Court in the next year. Other federal courts, including D.C.’s influential circuit court, disagree with the judges of the 9th Circuit about whether the government can warrantlessly track Americans’ every left turn. For those who don’t want to wait around for the Supreme Court to decide, Gizmodo offers a list of the best GPS jammers for your money.

[This article draws heavily from Adam Cohen’s article in Time Magazine]

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