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More and more today people are making use of GPS systems, small electronic devices that allow you to tap into a satellite network and locate your position on the globe to within a couple of yards. Many privacy advocates are worried, however, because the police are making of them, too - for tracking suspects. Should there be any restrictions on the government's ability to precisely track your every move?

As with so many other cutting edge privacy concerns, those most immediately affected are those who arouse the least sympathy in the general public. Case in point is William Bradley Jackson, convicted of murdering his daughter after the police secretly attached a GPS device to his truck and tracked him when he went to dig up her original, shallow grave and took her body someplace where he could conceal her more thoroughly. Without that, they might never have been able to convict him - but they didn't have any sort of warrant or judicial oversight for their actions.

Jackson challenged this and the Washington Supreme Court decided that police and other government agencies don't have the authority to use GPS devices freely and at their own discretion (i.e., without a warrant). Jackson certainly isn't a sympathetic figure, but we should not form our conclusions about the validity of warrantless GPS tracking on cases like his alone. If we did, then we would permit random house-to-house searches without warrants because they would occasionally turn up murderers and terrorists as well.

Instead, we must ask ourselves whether we really want the police or any other arm of government power to be able to track a person's every move without having to show an independent judge that they actually have a good reason and real need to collect such data. No one is saying that the police will never have such a need for this power, but we have just cause to wonder if the police can be trusted to never misuse or abuse it.

Consider: if there were truly no need whatsoever for the police to have to show just cause for the use of GPS trackers in any situation, then why not install specially coded GPS devices into every car? Or even require us all to carry them around on our persons? Then the police could track every single one of us every single minute of every single day. If we have nothing to hide, we shouldn't object - right?

I think that most people would object - not only to carrying one around, but even to having one permanently attached to their cars. That doesn't mean that they have anything in particular to hide; rather, it means that few people are willing to hand over that kind of information to the government when they don't think that the government has a good reason to have such data. In other words, most people do believe that the government needs a very good reason to track their movements, an attitude that should be extended to all others in society as well (including unsympathetic people like Jackson who, at the time, was a suspect rather than a convict).

To require police to have a warrant in order to attach a GSP device to a person's car (or insert it in their body, an option which may eventually become feasible) means that the police have to appear before an independent, impartial judge and show that they have "probable cause." This is a legal standard that means that the police must demonstrate that they have "sufficient reason based upon known facts to believe a crime has been committed or that certain property is connected with a crime."

If they don't have to show probable cause, then they are free to track anyone, anywhere, anytime, even if they have no reason to suspect that person of any crimes. Moreover, if the police are not held to any standards in this, does that mean that private citizens will be free to do as they wish, too? Stalkers can use GPS devices to track the people they are harassing; spouses can use them to spy on each other. Just what are the legal limits to tracking other citizens?

It is very possible that the Washington Supreme Court could have decided that the police don't need a warrant or probable cause in order to track citizens. The first ever wiretapping case that went to the Supreme Court, Olmstead v. US, was decided against the people. Chief Justice Taft ruled that the 4th Amendment only referred to material things and physical searches of physical property - tapping the phone lines was neither, so police had a free hand. It won't be a loss to have Jackson remain in prison, but a decision in this case against the people would have been a loss for our privacy. It is, I think, worthwhile to quote from Louis Brandeis' dissent in Olmstead:

The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man's spiritual nature, of his feelings and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the government, the right to be let alone - the most comprehensive of rights and the right most valued by civilized men. To protect that right, every unjustifiable intrusion by the government upon the privacy of the individual, whatever the means employed, must be deemed a violation of the Fourth Amendment.

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