Many folks believe that the excesses of the Bush administration regarding warrantless surveillance of US citizens have been reined in by the 18-month-old Obama administration. They might be very surprised, though, because it appears that “Big Brother” can track your travels in your very own vehicle whenever they want. And “whenever they want” means what it sounds like: without a court-ordered search warrant.
The US Court of Appeals for the Ninth Circuit, which covers at least eight large western states, ruled in January that government agents can sneak into your driveway in the middle of the night and attach a hidden GPS unit under your car, and they can do it without a search warrant. What’s worse is that the decision was reviewed by a larger panel of Ninth Circuit judges in response to a request for reconsideration. The panel let the original decision stand.
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.
This constitutional guarantee is why wiretapping, house searches when a crime is not in progress, and government examination of your records and papers without a court-ordered search warrant are illegal, and it has been interpreted and defined by 240 years of US Supreme Court case law.
The 9th Circuit Court ruled that the government attaching a GPS unit to anyone’s vehicle didn’t need a warrant because no one can reasonably have an expectation of privacy in their driveway because it is open to delivery/service people as well as neighborhood children. That means that if you’re rich enough to have your entire property fenced in, this ruling would not apply to you.
Furthermore, they ruled that no one can reasonably expect that the government isn’t tracking them. In other words, maybe the government is tracking EVERYONE, and we should expect that. Welcome to George Orwell‘s classic novel “1984” about a repressive and brutal police state where the government spies on everyone and controls all human activity.
And finally, according to this ruling the government can tamper and tinker with (and alter) your private property with impunity but without a search warranty! Does this also mean that anyone can tinker or tamper with anyone’s car, in anyone’s driveway, whenever they want? Or is it activity just reserved for government agents. If so, where is THAT written??
In the meantime, in a similar case the US Court of Appeals for the District of Columbia Circuit ruled the complete opposite! Thus it seems that this case will end up before the Supreme Court.
After years of Bush administration warrant-less surveillance and searches through telephone company records and then claiming justification because of “national security” and also because obtaining a warrant was too “inconvenient”, it’s still chilling to read that this is still happening in today’s America.
And it begs these questions: Why has there been almost no press on this with the singular exception of Time Magazine? Why has the Obama administration been so silent about the case? After all, Obama campaigned on the promise to fix this sort of thing. And while the president cannot reverse the Ninth Circuit’s ruling, he could have spoken out and ordered the Department of Justice to strictly comply with the 4th amendment and explore a legal action against the ruling.
Maybe it’s just that politics in America is so extremely polarized now that politicians will try to not say anything that the “other side” can jump on. But some of the dissenters of the ruling was the conservative Ninth Circuit Chief Judge Alex Kozinski, who was appointed by conservative president Ronald Reagan. And the judges on the DC Circuit Court who ruled against the practice were appointed by the past three presidents: Bush 1, Clinton, and Bush 2, respectively.
This issue just might transcend the “liberal vs conservative” litmus test. We should all hope so, because the last thing any citizen should have to worry about is an abusive and invasive government that does all sorts of nasty things in the middle of the night.
After all, if this ruling was allowed to stand, what would be next? Hidden secret government-installed HDTV cameras in bedrooms to spy on Americans’ sex lives, to make sure it’s only done for procreation, and they better not make noises while doing so?