CNET’s ‘Technically Incorrect’ blog leads me to a rather disturbing story in the Chicago Tribune last week about a ruling from a court in Wisconsin, USA. The judges in the appeal court decided that police use of covert GPS tracking devices is equivalent to the naked eye and therefore is not covered by US constitutional prohibitions (in the 4th amendment) on search and seizure. Whilst the local representative claimed that “GPS tracking is an effective means of protecting public safety”, ACLU argued that in fact this is an unwarranted extension of surveillance powers: “the idea that you can go and attach anything you want to somebody else’s property without any court supervision, that’s wrong.”
Now the case itself involved a man suspected of stalking, itself a form of surveillance and not something anyone would want to encourage or defend, however, once again, ends do not justify the means, particularly when the implications of the use of such means are so profound. The ruling illustrates the widespread inability of judges (and lawmakers more broadly) to deal effectively the way in which new technologies change the game or perhaps the inability of constitutional protections to protect effectively in an age of vastly improved technologies of visibility.
In fact the judges in this case themselves expressed some disquiet about their ruling. I can sympathise with them – it is far from obvious how to interpret new surveillance technologies with the constition and laws available. One would think, after the wiretapping cases of the 60s and 70s in the USA, that this lesson might have been learned, but it seems courts will continue to take terms like ‘inside’ and ‘outside’ literally – as perhaps they must. But surely if a device is attached to the ‘outside’ of a car or a house, or indeed is not attached at all and is remote, it does not automatically follow that the information that the device collects is not intimate and personal, and indeed not the same as what could only have been obtained in previous decades by direct human intrusion? For example, a device that can effectively ‘see through walls’ is not the same as the naked eye – it is the equivalent of a police officer being inside the house. Whether this applies to a GPS tracker on a car (whether it is really any more or less than an officer sitting outside the house, or following the vehicle) is a moot point – there will be more and more of these cases, as police test the technological limits of the law, and it seems that most countries, not just the USA, still lack the professional (as opposed to the academic) legal thinking to deal with them.