Should I still have expectations of privacy in my “home”?

May 14th, 2009 by Mimi Yin

When are we going to stop using “physical” boundaries to determine where we should and shouldn’t have expectations of privacy?

Not any time soon, says the Wisconsin Appellate Court, which recently ruled:

“We discern no privacy interest protected by the Fourth Amendment that is invaded when police attach a device to the outside of a vehicle, as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant,” wrote Judge Paul Lundsten for the unanimous three-judge panel.”

(For what it’s worth, the New York State Court of Appeals recently went the other way.)

Seems like everything hangs on how you interpret the phrase “as long as the information obtained is the same as could be gained by the use of other techniques that do not require a warrant.

I guess they just figure that GPS tracking is simply a less labor-intensive equivalent of “tailing” vehicles in an undercover cop car, which does not require a warrant. (The logic there is that a vehicle on public byways is in plain sight of anyone who wants to look.)

But “tracking” vehicles with a GPS device just feels different. For one, there’s no “looking” involved. The police simply “know” where you are. And they know regardless of whether you’re indoors or out, in private spaces or public spaces.

Really, we are all being tracked already by our cellphones, metrocards and Fastrak/EZPass devices. So maybe we just shouldn’t have an expectation of privacy anywhere (at least anywhere we can get a signal or until our batteries run out). Instead, we should “expect” that we’re being tracked all the time whether we’re in our homes or in the middle of Times Square.

If the courts are going to draw physical boundaries around expectations of privacy in the satellite/cellular/wireless age, they should draw them around areas with poor cell coverage and wireless service. In which case, the back of my basement is the money spot for me.

But really, I’d prefer it if the cops had to obtain a warrant before they could plant a GPS tracking device or access existing GPS data.

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