There are some 2.5 billion-text messages sent per day in the U. S., which exceeds by about 70% the number of phone calls.  The federal government installed a GPS tracking device installed on a motor vehicle collected some 2,000 pages of information about where the vehicle traveled during the 28 days the tracking device was attached to the vehicle. The ability to collect, store and analyze massive amounts of personal information cheaply has made a “World Without Walls.”  Aaron Bady, the author of the essay “World Without Walls” makes the case that: “When everything that can be recorded is recorded, our means of protecting privacy must fundamentally change.”

See and Record Everything.

Two recent court decisions highlight the conflict between the effort of the government to use your personal information without obtaining a warrant and your right of privacy. When a recent case involving the use of a GPS tracking device was argued before the United States Supreme Court, George Orwell’s, classic book “1984” loomed over the case like a dark cloud warning us that the collection of personal data could turn our country into an Orwellian police state. Orwell’s book “1984” was mentioned 4 to 5 times during oral argument with Justice Beyer stating to the Government Attorney: “If you win this case 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.” That “sounds like 1984.”

So what were the facts that brought U. S. v. Jones to the U. S. Supreme Court?  In Jones the Government installed a Global-Positioning System (GPS) to a motor vehicle used by Jones who was the subject of a criminal investigation without obtaining a search warrant.  The Government relied on an earlier case where it has placed a beeper inside a bottle and the fact that movements of the car in the public did not require a search warrant. The GPS tracked the movements of the vehicle for 28 days obtaining some 2,000 pages of information about where the vehicle traveled.  The government filed charges against Jones using the GPS data and other evidence resulting in a conviction by a jury and a sentence to life imprisonment based upon his connection to some 97 kilos of cocaine and $850,000 at a stash house.

U. S. Supreme Court

The United States Supreme Court ruled that the attachment of the GPS to the car without a warrant for the purpose of obtaining information on the movement of Jones was a violation of his Fourth Amendment right against unreasonable searches and seizures. Justice Scalia wrote the opinion for the Court noting that the government physically occupied the private property of Jones for the purpose of obtaining information by attaching the GPS to his car much like a common law trespass. Scalia wrote that the Court must assure preservation of the degree of privacy against the government that existed when the Fourth Amendment was adopted in 1791. Justice Scalia’s opinion was joined by four other judges, however Justice Sotomayor  – who joined in Justice Scalia’s opinion – wrote a separate concurring opinion stating she concurred only in the result in this case while expressing grave doubts about the ability of the Scalia test to analyze other situations that did not involve a physical trespass.  Four other judges – while agreeing that the attachment of the GPS device was a invalid search under the Fourth Amendment – based their opinion on its length of time it was attached – applying (the Katz test) to determine whether or not a person had a “reasonable expectation of privacy under the circumstances.”

The concurring opinion by Justice Sotomayor does an excellent job in laying out the issues, although she leaves the resolution of developing a better-suited test for another day.  She notes that in many instances physical intrusion is not necessary in order to conduct surveillance rendering the majority opinion nearly useless with respect to how 18^th Century tort law applies to a “World Without Walls.” She cogently notes that: “Awareness that the government may be watching chills associational and expressive freedoms.”  She observes that government monitoring of your e-mail or a trip to the “… psychiatrist, the plastic surgeon, the abortion clinic, the AIDS treatment center, the strip club, the criminal defense lawyer, the by-the-hour motel, the union meeting, the mosque, synagogue or church, the gay bar and on and on provides the government with intimate personal information about a person’s lifestyle.” In short, she was expressing the same view as Justice Beyer that if GPS surveillance was allowed Big Brother could watch your every move.

Government tries to monitor all of your movements

While the U. S. Supreme Court unanimously concluded that placement of the GPS tracking device by the Government required a search warrant, the Court was split evenly (4 to 4) on what test to apply with Justice Sotomayor, leaving to another day the development of an appropriate test to analyze these cases. One day after the United States Supreme Court’s decision in U. S. v. Jones, the Missouri Court of Appeals for the Western District answered the question of what test to apply in Missouri in State of Missouri v. Clampitt. In this case, Missouri charged the Defendant with first-degree involuntary manslaughter and leaving the scene of a motor vehicle accident. The State obtained information from U. S. Cellular about the content of Defendants text messages and details for incoming and outgoing text messages as well as the phone number under different accounts starting June 13, 2010 through July 2010, without obtaining a search warrant based upon four investigative subpoenas. The Western District in its effort to read U. S. Supreme Court tea leaves applied the “reasonable expectation or privacy” test used by the Sixth Circuit in U.S. v. Warshak, which held that individuals had a reasonable expectation of privacy in the contents of their emails and applied this to text messages.  While cell phone providers have the ability to access their subscribers text messages the ability to access the messages does not diminish the subscriber’s expectation of privacy in their text messages communicated through cell phone.  The Court reasoned that what could now be sent in a text message was historically protected when sent by mail and phone calls.  It therefore follows that society expects the content of text messages to receive the same Fourth Amendment protections afforded letters and phone calls.

While these cases protect your personal movements and the contents of your text messages from the prying eyes of the government, George Orwell served us well when he wrote “1984” as we struggle to apply outmoded laws to new technology in the “World Without Walls.” Facebook, Goggle and others collect our personal information and sell this information for billions of dollars. Some have suggested that the better way to deal with this highly complicated matter is to pass laws limiting the power of the government to access our personal information except with a warrant. Orwell’s “1984” has many reminders of the need to control the power of government. Will we have to worry about  committing a “facecrime?”

“It was terribly dangerous to let your thoughts wander when you were in any public place or within range of a telescreen. The smallest thing could give you away. In any case, to wear an improper expression on your face… was itself a punishable offense. There was even a word for it in Newspeak: facecrime…”  
 George Orwell, “1984” – Book One, Chapter V.

Howard Wright@2012