The Supreme Court’s decision in U.S. v. Jones last week was hailed by the ACLU as a “victory for privacy” and has largely been interpreted as an encouraging sign that the courts are willing to wade into the murky waters of technology and privacy. But the case also highlighted the fact that the government is already actively engaged in using new technologies to spy on citizens, and the narrow ruling does not present a challenge to many of these activities. In a unanimous decision published last Monday, the Supreme Court ruled that the government’s warrantless installation of a GPS tracking device on a suspect’s vehicle and the subsequent monitoring of its movements for 28 days were unconstitutional. The narrow opinion of the majority of the court, led by Justice Scalia, focused largely on the physical intrusion that resulted from the installation of the device. The case demonstrated that the government is more than willing to argue for unthinkable powers. In a powerful exchange during oral arguments, Justice Breyer summarized the government’s desired outcome: “If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States… [Y]ou suddenly produce what sounds like ‘1984.’” But while the ruling will limit the warrantless installation of GPS tracking technologies, many modern surveillance methods that rely on built-in GPS systems and other technologies are left untouched.
Pressed by Senator Wyden (D-OR) in July 2011 to answer whether the National Security Agency (NSA) believed they had the authority to “use cell site data to track the location of Americans inside the country,” the organization’s former general council, Matthew Olsen, responded ominously, “There are certain circumstances where that authority may exist.” In fact, the government has defended the use of similar methods in the past. In the 2004 case of U.S. v. Forest, the DEA utilized a technique that secretly dialed the suspect’s phone without allowing it to ring. By identifying the cell phone towers picking up the transmission, the government was able to effectively turn his cell phone into a tracking device. With updates in cell phone GPS technology, cell phone tracking is even simpler today. Much of current privacy law regarding electronic communication is governed by the Electronic Communications Privacy Act (ECPA). Passed in 1986, the law predates the commercialization of the internet by nine years and came only three years after the first commercial mobile phone was approved by the FCC. This, along with interference from laws such as the USA PATRIOT Act, has left ambiguous the permissibility of surveillance techniques developed over the last 25 years. In June of last year, Representative Jason Chaffetz (R-UT) and Senator Wyden introduced the Geolocation Privacy and Surveillance Act (GPS Act) in an attempt to close some of the gaps left by ECPA. Supporters, which include the Electronic Frontier Foundation and the ACLU, say that the act provides clear guidelines for the use of new technologies by law enforcement and corporations. “Twenty-five years can seem like several lifetimes when it comes to advancements in technology,” Wyden said in a press release. “This legislation offers law enforcement and the telecom industry clear guidelines on how location data can be used, while giving law-abiding consumers confidence that their privacy rights are being respect[ed].” In the meantime, the use of more complex surveillance technologies by law enforcement--as well as moves to access information from devices and programs commonly used by consumers--are on the rise. One example includes a recent posting by the FBI on the Federal Business Opportunities website. The agency is on the hunt for a complex social media monitoring application, the description of which may provide a glimpse into the future. Requirements for the application include the “[a]bility to instantly search and monitor key words and strings” across posts on social media sites such as Twitter and FaceBook and to “geo-locate” the searches, effectively monitoring the lives of hundreds of millions of people worldwide. While the new application may make the government’s efforts to monitor the populace much easier, similar mechanisms are already in use. Earlier this month, the Electronic Privacy Information Center obtained nearly 300 pages of documents following a Freedom of Information Act lawsuit against the Department of Homeland Security. The documents describe in detail a full-fledged spy program aimed at users of social media across the web. Last week’s decision is a welcome development but it will do little to stop many of the disturbing encroachments that are already underway.
Andrew Bashi is a Winter 2012 editorial intern at In These Times. A-third year law student at Loyola University Chicago, he is an active board member of the Chicago Chapter of the National Lawyers Guild.