Posted Friday, April 22nd, 2011 by Yevgeny Shrago
The Fourth Amendment and Income Inequality
Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals visited Harvard Law School yesterday to discuss his recent blistering dissent in a Fourth Amendment case. In United States v. Pineda-Moreno, the Ninth Circuit weighed in on the growing jurisprudence surrounding police officers placement of a GPS tracker on a suspect’s car without a warrant. The three judge panel hearing the case held that this did not violate Pineda-Moreno’s Fourth Amendment rights because he had no reasonable expectation of privacy for the underside of a car parked in his driveway. Judge Diarmuid O’Scannlain reasoned in his unanimous opinion that if a neighborhood child could place the tracker, so could the cops.
Chief Judge Kozinski vehemently disagreed with the panel’s “wayward child” standard, pointing out that such a rule gives one expectation of privacy for those wealthy enough to afford enclosed garage parking and another for those reduced to parking on the street. Chief Judge Kozinski accused the panel (and implicitly the entire judiciary) of “unselfconscious cultural elitism” for failing to understand the divergent situation. Although Kozinski’s attack on his fellow judges’ reasoning provided a powerful counterpoint, HLS Professors Jeannie Souk and Charles Fried suggested a different tack for understanding the decision: letting the police be more effective at doing the jobs they have a constitutional right to do anyway.
In the discussion, Chief Judge Kozinski provided an expanded view that not only GPS tracking, but also the ability to pull a suspect’s location off his cell phone signal with the provider’s permission, was “creepy and un-American.” He pointed out that with this sort of information, the police could learn personal details about anyone without needing a shred of probable cause. In particular, cell phone signals could be used to pinpoint a person’s location to determine that they were, for example, having an affair.
Professor Suk, with an assist from Professor Fried, raised a pointed objection. Officers can tail a suspect without a warrant, conducting surveillance that gives them the same intimate details. Before mobile telecommunications, though, the surveillance required stakeouts and teams of officers. Denied the ability to use GPS and cell phone towers, the police would have to spend significantly more resources to achieve the same result, while also risking that the suspect would give them the slip.
For a libertarian like Chief Judge Kozinski, making government ineffective is a feature, not a bug. For progressives, the issue is more complicated. Even though Kozinski’s dissent powerfully captures how the law discriminates in its level of protection for the rich and the poor, the discrimination in GPS and cell phone tracking capability is not the place to fight this battle. Fixing this problem by creating government inefficiency only exacerbates the inability of police departments to undertake community-based policing—and takes money away from solutions that can help remedy the underlying income inequality issues. We would be better off using limited political and financial resources to focus on smoothing out the larger inequalities in the system than battling police departments to make them keep doing things the old-fashioned way.
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In a 1973 instance, agents placed a tracking device on a citizen’s vehicle and used it to track him closely across the United States.
In Georgia, the citizen found the device and started to remove it.
The agents then sought to arrest the citizen for “possession of government property”!
The contumely of the FBI with regard to the rights of individual citizens is notorious. Some system of recourse that does not require a citizen to be wealthy is needed.
The efficiency argument is misplaced.
It would also be more efficient to allow police to place wiretaps without getting a warrant (thus avoiding the costs of finding some cause, having to fill out paperwork, making an argument to a judge, etc.). But clearly, people and the law would not find that argument acceptable.
If your response is about a reasonable expectation of privacy, then look at the following scenario: If someone talks on a cell phone in public, it’s clearly more efficient to allow the police to wiretap the line and listen to the conversation than to have to get a warrant or to have to have an officer follow the person in distance of earshot.
Chief Judge Kozinksi isn’t arguing that all of government should be inefficient—I assume he would support efficiency in payroll processing for the judiciary—but rather that a certain amount of inefficiency in certain areas provides a check on violations of our prized liberties. When the police have to make decisions about allocating resources—such as dispatching surveillance teams—we all benefit. In such a world, if $200,000 of goods was stolen from a store, it would be implausible that the police would dispatch a team to track the minute-to-minute movements of the hundred cars that passed through the store’s parking lot that day. Instead, their cost-benefit calculation would require them to actually investigate who the most likely culprits of the crime are and to decide whether they are suspicious enough to warrant surveillance. However, in a world where GPS trackers can be bought for less than forty dollars and placed on cars in driveways without a warrant, it’s plausible that the police would indeed install a tracker on all one hundred cars and track the movements of up to one hundred innocent drivers indefinitely. Sure, this is more efficient.. but is it acceptable given our expectation of privacy?
Or consider a scenario where a city’s police department receives a windfall (or unlimited) budget that allows them to stake officers on top of every building and track the movements of every person and vehicle throughout the city. It is difficult to believe that citizens would find this big brother system acceptable or consistent with their expectations of privacy.
When we’re dealing with the protection of an expectation-based liberty, we have to take this into account, for our expectations incorporate the efficiencies—and inefficiencies—of the system we live in.