Thursday, August 26, 2010

"We Are Living in a Totalitarian Dystopia, and Other Fictions," by The National Media

 ("No Trespassing" by Dru Bloomfield on Flickr)

Back in January, the 9th Circuit Court made a decision, in a case called United States v. Pineda Moreno, that some media outlets are calling a "worst nightmare" scenario. This nightmare decision was just published recently, and the media is panicking. After this ruling, according to the press (Time, CNN, etc.), "Government agents are now legally able to sneak onto your property, put a GPS tracking device on your car and track your movement without you ever knowing" (NBC4i). If you read some of these articles, you'll find that there are more Orwell references in the press around this ruling than in an Apple ad.

In fact, from press descriptions, it sort of does sound like a dystopian, science-fictional prospect: a government gone horribly wrong and violating individual privacy rights. But that's because the descriptions are often wrong; that's not at all what is happening here. The reality, as evident to anyone with at least a little legal training, is certainly interesting, but a lot less alarming than this.

The case is divided into two pieces: putting the GPS device on a car in a driveway and the government using the data. Here's why neither part of this ruling is as surprising or as threatening to our civil liberties as these stories might have you believe.*

First of all, there's the placing of the device. The press is making it sound like the government now has a license to sneak onto your private property and put trackers on your car. This is a horrible misrepresentation of what this case stands for. What the case at issue did was categorize peoples' freely-accessible driveways as not private property, but semi-private areas.

The fact of the matter is that the court decided, in 1999, that putting trackers on cars was not an illegal search and siezure if the car was in a public place (US v. McIver). All this case did was affirm the determination (again, made over ten years ago) that a driveway is closer to a public place than to a private place.

And even this decision, which still has a semi-ominous ring to it, comes with a lot of protections; the court, in this case, was careful to say that if there had been a "no trespassing" sign or some sort of barrier, the case would probably come out differently.

The court indicated that, in order to stop this horrifying invasion of privacy, you don't need to resort to illegal signal jammers. All you need is a bit of cardboard, a marker, and a nail. Or to be safe, a gate on your driveway. That's all. Your private property is still as safe and private as it has been for the last ten years.**

And then there's the matter of using the GPS data against someone. In 1982, the US Supreme Court decided that putting a tracker in a bottle of chemicals purchased by a suspected narcotics manufacturer was legal without a warrant (US v. Knotts). This court decided that the same logic should apply to cars traveling public roadways. If this is a violation, it's a violation that has been happening since 1982, not just because of this "nightmare ruling," but because the highest court in the country thought it was constitutional.***

The cautionary tale buried in this saga is not one of civil liberties or privacy. It's one of reporting. Media outlets are often a little quick to paint new rulings as dramatic departures and usurpations of civil liberties. In reality, new rulings like this one would function better if reported as reminders to the public that they aren't thinking carefully enough about their own privacy.

The privacy lesson of this case is that if you care about things being private and keeping the government's prying eyes off of your business, keep that business in the garage, since you can't reasonably expect your driveway to be private property. This is maybe a challengeable prospect, and it probably will be challenged in the supreme court. But despite what some would have you believe, the only way this case relates to Orwell's Nineteen Eighty-Four is that the rule codified here has essentially been the law since the mid-80's. Any innovation is only in how it's being reported.

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* The ruling could still be troubling if you think the government is moving in a bad direction, but it's important to remember that there isn't a whole lot of innovation in this ruling. Also, a lot of my discussion here was informed by the LLRMI analysis of the case, which is farily representative of what the case actually says.

** The ruling is, however, maybe symbolic of a class divide (between people that can afford gates and people that cannot). This is discussed in the dissent to the case and is a very interesting issue. It's not, however, that indicative of the actual privacy implications of this ruling.

*** Don't mistake this for an argument that, since it's been going on for a long time, it should be legal. Again, I'm complaining about how the ruling is being presented. The ruling itself will get the challenge it deserves when the case goes to the supreme court.