Privacy is one thing that most citizens of the United States take for granted. After all, the right to privacy is in the Constitution, isn’t it? Would you be surprised to hear the answer is, “No”? It is, in fact, not enumerated anywhere in the Constitution. While we do enjoy the various rights to free speech and freedom from warrantless searches or seizures of property without due process, the right to privacy has been more of an inference than an absolute right. Most knowledgeable people refer to an expectation of privacy, which is more accurate, rather than an absolute right. With today’s technology, where everyone is on Facebook and we wouldn’t dare leave home without a GPS (or a wife unafraid to ask for directions), it is unsurprisingly, becoming a problem for law enforcement and other government agencies who have embraced the freedom of technology without necessarily vetting the legalities of its use. Two recent articles are prime examples of where the government has overstepped its bounds in utilizing technology.

National Public Radio recently ran a story on the FBI overstepping its authority in using GPS tracking devices without bothering to get a warrant. In the issue before the court in U.S. v. Jones the FBI attached a GPS tracking device to a vehicle of a suspected drug dealer in an effort to track his whereabouts. The idea was that the GPS tracker would better be able to track the stops and whereabouts of the vehicle than a surveillance team and at a lesser cost. Jones was arrested, based largely on the data provided by the GPS, and was sentenced to life in prison.

He appealed the decision to the DC Appeals Court (Jones was arrested in Washington D.C.) saying the tracker violated the Fourth Amendment against warrantless search and seizure. His conviction was overturned by the higher court saying that the police action was a search because it violated Jones’ reasonable expectation of privacy (so, that’s where that privacy clause is).  The issue was appealed to the Supreme Court who agreed to hear the case.

In arguments before the Supreme Court, the Solicitor General said that, once a person comes out onto a public road, they should have no reasonable expectation of privacy. He attempted to equate the use of GPS with that of a “beeper” another device used to track vehicles from a short distance. The court did not buy the arguments, saying that a beeper still took a “lot of work” where a GPS allowed police to sit in the station and push a button whenever they wanted to find out where the suspect was. The appellate ruling was unanimously upheld, but it is interesting to note that there were two concurring opinions with different reasoning.

The scary part about this is, when the ruling came down, the FBI had about 3,000 GPS tracking devices in the field. Although government lawyers scrambled to obtain warrants to continue using the devices, they still had about 250 that needed to be turned off. FBI Director Rober Mueller, in testifying before the House Appropriations Committee said:

It will inhibit our ability to use this in a number of surveillances where it has been tremendously beneficial,” Mueller said. “We have a number of people in the United States whom we could not indict, there is not probable cause to indict them or to arrest them who present a threat of terrorism. … [They] may be up on the Internet, may have purchased a gun, but have taken no particular steps to take a terrorist act.

Unbelievable that this is what our government has come down to. Essentially, what Mueller said was, ‘We have lots of people who we think might do something bad. We have no reason to believe it, other than we just know in our hearts they are bad guys and we need to violate the Constitution to catch them. Oh, and too bad if we violate the privacy of a few million citizens. That’ the price of security’.

Fortunately, the Supreme Court saw it differently and upheld the Appellate Court decision. Andrew Weissmann, the top FBI attorney, said the court is making a distinction between using people to conduct surveillance and using machines. Rightly so, as the human element can determine whether there is really probable cause. The use of technology to conduct surveillance allows people to become lazy in casting a wide net at the hope of catching the relatively few real evil-doers in our society.

Weissman also said that FBI agents need clear rules (duh) but that obtaining a warrant is not always possible as it “requires probable cause to be shown”. Again, an absolutely absurd statement made by a top law enforcement official that should set off the alarm of every citizen of this country. Since when should the FBI or any law enforcement agency for that matter be conducting surveillance on citizens of this country without having probable cause? Aren’t the precepts of our Nation, our very Constitution itself, based on these basic rights that distinguish us from the rest of the world?

But the response from the government gets even more absurd. “The decision is reverberating very quickly into areas that I’m sure lots of you care about: national security, cybersecurity,
privacy, more generally,” said Solicitor General Don Verrilli at a recent Georgetown University Law Center conference. Issues over cellphone data, pre-installed GPS (think OnStar) and public security cameras will certainly be up for discussion, if they haven’t come up already.

But the issue of privacy comes much closer to home. In a recent story published by the Sacramento Bee, a juror’s privacy rights regarding his Facebook account have come under the judicial microscope. From the Sac Bee story:

There’s no such thing as “compelled consent” when it comes to a juror’s privacy rights, but if a court finds good cause to believe the panelist was biased in his deliberations, it has every authority to kick over the rock “to see what’s there.”

Those were the competing arguments Friday when lawyers faced off before the state’s 3rd District Court of Appeal over whether a juror must allow Facebook to turn over to a judge the thoughts he posted about an ongoing Sacramento criminal trial.

Read more here: http://www.sacbee.com/2012/03/24/4362659/jurors-right-to-facebook-privacy.html#storylink=cpy

Two of the justices hearing the case have indicated they would require the juror to turn over pages of his Facebook account where he published his thoughts on a criminal trial he sat on. According to one of the justices, the writings violate the admonition by the trial court judge not to discuss the case with anyone. The issue revolves around the juror, known in court documents only as “Juror No. 1”, was prejudiced in sitting on the case. The defense lawyer, of course, said, yes.

Was there an expectation of privacy by the juror? Anyone who has a Facebook account knows that they thrive on public access. In fact, a chief complaint of Facebook has always been that they essentially break privacy of their users when introducing new features and this requires users who wish to keep things more within their circle to adjust their privacy settings. In fact, it has become almost a game of sorts and has even generated Facebook programs, or apps as they are called, that will notify a user when his or her privacy controls have been changed.

After hearing that Juror No. 1 had posted his impressions of the trial on his Facebook page, the defense attorney attempted to subpoena Facebook access to the juror’s page. Surprisingly, Facebook successfully fought the subpoena on the grounds that forced disclosure would violate the Federal Stored Communication Act that protects the privacy of internet users. In reply, the defense countered the Act violated due process for their client.

In a hearing, the Sacramento trial judge, Michael Kenny said the act permits Facebook to turn the postings over to the court if it has the user’s permission. Then, what could only be called an act of absurdity, he ordered Juror No. 1 to grant permission.  Fortunately, the judge appeared to be looking as much for guidance and appointed a lawyer to represent the juror. That lawyer immediately sought to overturn the judges order, arguing that only investigative agencies can get postings and “there isn’t an ongoing criminal investigation with respect to my client.” He characterized as “legal fiction” the notion that a judge could force his client to give up the postings through “compelled consent.” Essentially, he said, the court does not have the legal standing to bring charges against someone for a perceived crime.

It is important to note that Juror No. 1 did produce five pages of his Facebook page that, as the lawyer put it, produced “no smoking gun”. Taking this any further, he said, amounted to a fishing expedtition.

We couldn’t agree more. But these cases are perfect examples of how the government has decided to error on the side of government security rather than its people. Other issues now involve government employers who are requiring potential employees to turn over their Facebook passwords so that employers can “troll through” their employees’ accounts. Senator Charles Schumer (D-NY) and Senator Richard Blumenthal (D-Conn) are leading the charge against this practice. “You shouldn’t be required to give up your private life just to get a job.” Schumer further states the practice may break anti-discrimination laws because it may yield information about a prospective employees private life regarding religion, marital status, and other things that it is illegal for an employer to inquire about.

It is fortunate that the ACLU sued the State of Maryland on behalf of an applicant and the state has changed its policies (although they still ask you to voluntarily give up your password). All of these cases demonstrate the government is becoming less like the Republic our forefathers founded and more like the Big Brother of George Orwell’s “1984”.

And, should you think it stops at the statehouse, don’t forget that, until recently, nearly every political body that met in public required public speakers to identify themselves and where they lived. Even recently, we found our own city planning commission violating the rights by inferring that speakers had to “fill out a speaker card”. At a recent commission meeting in fact, I spoke on behalf of a permit applicant. Although I freely gave my name to the commission, I also told them that their practice is illegal and that I only identified myself as I wanted each of them to know who I was as a blogger. Oh, and I didn’t fill out the speaker card. Nonetheless, I’m sure they have my number.