Posted 28 Sep 2010
The Big Koz is at it again. Alex Kozinski is the chief judge of the Ninth Circuit, the biggest, baddest circuit around. That circuit just got done granting police in their jurisdiction the power to intrude onto someone's property and install vehicle tracking devices without a warrant. Alex Kozinski disagrees with that power.
The right to exclude intruders into your private thoughts, property and affairs is a fundamental human right. This concept is so fundamental to Western legal systems that in 1604 Sir Edward Coke was able to declare that a person's home is their castle. The Declaration of Independence, the US Constitution and countless other documents also reflect this fundamental principle of freedom.
For example the Fourth Amendment to the US Constitution requires the government to have a warrant based on probable cause before they can intrude on someone's privacy without their consent. In other words, they need a really good reason.
In the past few years the government has permitted searches for worse and worse reasons. Sometimes, they need not have any reason at all. All branches of government have contributed to the decline. The executive branch vigorously pushes the boundaries of acceptable behavior while enforcing the law, legislatures pass Patriot Acts and other laws which erode privacy, and judiciaries interpret the language of the Constitution with no regard to the underlying principles, interpreting some provisions into dead letters.
It's not that there aren't vigorous defenders of better privacy in high government positions. There are, but they are outnumbered, outgunned and marginalized. Alex Kozinski is one of the most notable examples. Not only is he a staunch defender of better privacy, he regularly finds himself penning eloquent and insightful dissents. Recently, he has been at it again.
In US v. Pineda-Moreno, police snuck onto a man's private property in the middle of the night, without a warrant, and put one of the police GPS vehicle tracking devices on a car. The vehicle tracking device tracked his every move which the government collected.
Theoretically the police probably violated a few fundamental principles of law. They came on the land without permission (trespass to land) and they messed with this guy's stuff (trespass to chattels). Practically, however, damages for minor intrusions like this are usually very limited and in this case, the police will probably claim sovereign immunity and not pay for the wrong they committed. The individual police officers will not be held liable either.
If you think that you have a right to keep police off of your property unless you invite them, or if you think that messing with your car (like putting GPS vehicle tracking devices on them) is wrong, you are not alone. You share company with chief judge Alex Kozinski.
Here are some of the highlights of Alex Kozinski's dissent in US v. Pineda-Moreno.
"Having previously decimated the protections the Fourth Amendment accords to the home itself (citation omitted) our court now proceeds to dismantle the zone of privacy we enjoy... The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last...
"The panel authorizes police to do not only what invited strangers could, but also uninvited children—in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people...
"In determining whether the tracking devices used in Pineda- Moreno’s case violate the Fourth Amendment’s guarantee of personal privacy, we may not shut our eyes to the fact that they are just advance ripples to a tidal wave of technological assaults on our privacy.
"If you have a cell phone in your pocket, then the government can watch you. At the government’s request, the phone company will send out a signal to any cell phone
connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider—Sprint—over eight million times. The
volume of requests grew so large that the 110-member electronic surveillance team couldn’t keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users’ location data. Other cell phone service providers are not as forthcoming about this practice, so we can only guess how many millions of their
customers get pinged by the police every year.
"Private companies are starting to save location information to build databases that
allow for hyper-targeted advertising. Companies are amassing huge, ready-made databases of where we’ve all been...
"By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal
about us because where we go says much about who we are. Are Winston and Julia’s cell phones together near a hotel a bit too often? Was Syme’s OnStar near an STD clinic? Were
Jones, Aaronson and Rutherford at that protest outside the White House? The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where the groups hold meetings and ask the phone company for a list of cell phones near those locations...
"You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there’s no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention.
Nor is there respite from the dense network of cell towers that honeycomb the inhabited United States. Acting together these two technologies alone can provide law enforcement with a swift, efficient, silent, invisible and cheap way of tracking the movements of virtually anyone and everyone they choose. ..
"There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie
feeling of déjà vu...
"We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find
we’re living in Oceania."
That déjà vu that Judge Alex Kozinski is talking about is the dictatorial control which the government has to monitor and track any one of its citizens, surreptitiously, at all times with no good reason. If anyone is qualified to speak about dictatorships and preventing them it is Judge Alex Kozinski. He grew up in a dictatorship in Eastern Europe. If we aren't listening to this guy, who are we going to listen to?
The ultimate lesson to learn is that the government will not only fail to protect you, they are one of the biggest threats to better privacy. It is up to individuals to take affirmative measures to prevent unwanted intrusion into their private thoughts, property and affairs. You are your own Fourth Amendment.
To prevent the police from putting GPS vehicle tracking devices on your car, park it in a garage, enclosed in a wall or fence, or sweep the vehicle before driving it. To prevent government intrusions in other ways, use encryption to encrypt emails, prepaid cell phones, anonymous web surfing, and lots of other tools. These all keep the government honest and prevent them from intruding upon your private places without having a really good reason. Use them wisely.
