*4 When you glide your BMW into your underground garage or behind an electric gate, you don't need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn't prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.
2. After concluding that entering onto Pineda-Moreno's property and attaching a tracking device to his car required no warrant, probable cause, founded suspicion or by-your-leave from the homeowner, the panel holds that downloading the data from the GPS device, which gave police the precise locus of all of Pineda-Moreno's movements, also was not a search, and so police can do it to anybody, anytime they feel like it. Contra United States v. Maynard, No. 08-3030, slip op. at 19 (D.C.Cir. Aug. 6, 2010). Our panel relies on United States v. Knotts, 460 U.S. 276 (1983), a case from the early 1980s, which involved very different technology.
The Knotts Court refers to the device used there as a “beeper” and describes it as “a radio transmitter, usually battery operated, which emits periodic signals that can be picked up by a radio receiver.” Id. at 277. The beeper helped police follow a vehicle by emitting a signal that got stronger the closer the police were to it. The Court considered the beeper to be an aid to following a vehicle through traffic: “The governmental surveillance conducted by means of the beeper in this case amounted principally to the following of an automobile on public streets and highways.” Id. at 281. Individuals traveling on streets and highways can be seen by the public, so they have no reasonable expectation that they won't be followed. The beeper helped the police follow the suspect more effectively-the way binoculars enhance the ability to see what is otherwise visible. But the beeper could perform no tracking on its own, nor could it record its location. If no one was close enough to pick up the signal, it was lost forever.
The electronic tracking devices used by the police in this case have little in common with the primitive devices in Knotts. One of the devices here used GPS satellites to pinpoint the car's location on a continuing basis-much like the electronic maps that are now popular in cars. The other type of device was, essentially, a cell phone that tracked the car's movements by its proximity to particular cell towers.
Beepers could help police keep vehicles in view when following them, or find them when they lost sight of them, but they still required at least one officer-and usually many more-to follow the suspect. The modern devices used in Pineda-Moreno's case can record the car's movements without human intervention-quietly, invisibly, with uncanny precision. A small law enforcement team can deploy a dozen, a hundred, a thousand such devices and keep track of their various movements by computer, with far less effort than was previously needed to follow a single vehicle. The devices create a permanent electronic record that can be compared, contrasted and coordinated to deduce all manner of private information about individuals. By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives.
*5 The Supreme Court has recognized that advances in “police technology [can] erode the privacy guaranteed by the Fourth Amendment.” Kyllo v. United States, 533 U.S. 27, 34 (2001). To guard against this, courts “must take the long view, from the original meaning of the Fourth Amendment forward.” Id. at 40. Kyllo followed a line of cases going back to United States v. Karo, 468 U.S. 705 (1984), Katz, 389 U.S. at 353, and Silverman v. United States, 365 U.S. 505, 512 (1961), which stemmed the erosion of personal privacy wrought by technological advances.
In Kyllo, the Court held that use of a thermal imager to detect the heat emanating from defendant's home was a search for purposes of the Fourth Amendment because the then-new technology enabled police to detect what was going on inside the home-activities the homeowner was entitled to consider private. Any other conclusion, the Court noted, “would leave the homeowner at the mercy of advancing technology-including imaging technology that could discern all human activity in the home.” Kyllo, 533 U.S. at 35-36 (citing Karo, 468 U.S. at 705). “While the technology used in the present case was relatively crude,” the Court continued, “the rule we adopt must take account of more sophisticated systems that are already in use or in development.” Id. at 36. In determining whether the tracking devices used in Pineda-Moreno's case violate the Fourth Amendment's guarantee of personal privacy, we may not shut our eyes to the fact that they are just advance ripples to a tidal wave of technological assaults on our privacy.
If you have a cell phone in your pocket, then the government can watch you. Michael Isikoff, The Snitch in Your Pocket, Newsweek, Mar. 1, 2010, available at http://www.newsweek.com/id/233916. At the government's request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider-Sprint-over eight million times. See Christopher Soghoian, 8 Million Reasons for Real Surveillance Oversight, Slight Paranoia (Dec. 1, 2009) http://paranoia/dubfire.net/2009/12/...veillance.html. The volume of requests grew so large that the 110-member electronic surveillance team couldn't keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users' location data. Id. Other cell phone service providers are not as forthcoming about this practice, so we can only guess how many millions of their customers get pinged by the police every year. See Justin Scheck, Stalkers Exploit Cellphone GPS, Wall St. J., Aug. 5, 2010, at A1, A14 (identifying AT & T and Verizon as providing “law-enforcement[ ] easy access to such data”).
Use LoJack or OnStar? Someone's watching you too. E.g., OnStar Stolen Vehicle Assistance, http://www.onstar.com/us_english/jsp/plans/sva.jsp (last visited July 17, 2010). And it's not just live tracking anymore. Private companies are starting to save location information to build databases that allow for hyper-targeted advertising. E.g., Andrew Heining, What's So Bad About the Google Street View Data Flap?, Christian Sci. Monitor, May 15, 2010, available at http://www.csmonitor.com/USA /2010/0515/What-s-so-bad-about-the-Google-StreetView-data-flap. Companies are amassing huge, ready-made databases of where we've all been. If, as the panel holds, we have no privacy interest in where we go, then the government can mine these databases without a warrant, indeed without any suspicion whatsoever.
*6 By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal about us because where we go says much about who we are. Are Winston and Julia's cell phones together near a hotel a bit too often? Was Syme's OnStar near an STD clinic? Were Jones, Aaronson and Rutherford at that protest outside the White House? The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where the groups hold meetings and ask the phone company for a list of cell phones near those locations.
The panel holds that the government can obtain this information without implicating the Fourth Amendment because an individual has no reasonable expectation of privacy in his movements through public spaces where he might be observed by an actual or hypothetical observer. But that's quite a leap from what the Supreme Court actually held in Knotts, which is that you have no expectation of privacy as against police who are conducting visual surveillance, albeit “augmenting the sensory faculties bestowed upon them at birth with such enhancements as science and technology afford[s] them.” 460 U.S. at 282.
You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention. Nor is there respite from the dense network of cell towers that honeycomb the inhabited United States. Acting together these two technologies alone can provide law enforcement with a swift, efficient, silent, invisible and cheap way of tracking the movements of virtually anyone and everyone they choose. See, e.g., GPS Mini Tracker with Cell Phone Assist Tracker, http://www.spyville.com/passive-gps.html (last visited July 17, 2010). Most targets won't know they need to disguise their movements or turn off their cell phones because they'll have no reason to suspect that Big Brother is watching them.