by Richard M. Thompson, Law Clerk,Congressional Research Service Report #R42109, December 1, 2011
Technology has advanced considerably since the framers established the constitutional parameters for searches and seizures in the Fourth Amendment. What were ink quills and parchment are now cell phones and the Internet. It is undeniable that these advances in technology threaten to diminish privacy. Law enforcement’s use of cell phones and GPS devices to track an individual’s movements brings into sharp relief the challenge of reconciling technology, privacy, and law. Beyond the Constitution, a miscellany of statutes and cases may apply to these tracking activities. One such statute is the Electronic Communications Privacy Act of 1986 (ECPA), P.L. 99-508, 100 Stat. 1848 (1986), which protects individual privacy and governs the methods by which law enforcement may retrieve electronic communications information for investigative purposes, including pen registers, trap and trace devices, wiretaps, and tracking devices. The primary debate surrounding cell phone and GPS tracking is not whether they are permitted by statute but rather what legal standard should apply: probable cause, reasonable suspicion, or something less.
We would like to invite you to read Geodata Policy’s first guest blog posting by Robert Gellman. This article is timely given the update of the Electronic Communications Privacy Act (ECPA) and the recent Federal Trade Commission (FTC) report, Protecting Consumer Privacy in an Era of Rapid Change, which highlights the sensitivety of “precise geolocation data” (p. 61). Robert Gellman is a privacy and information policy consultant in Washington, DC: http://www.bobgellman.com/.
Is Privacy in Public a Contradiction in Terms?
Robert Gellman, Privacy and Information Policy Consultant
February 21, 2011
Is there such a thing as privacy in a public space? When you walk down the street, anyone can observe you, make notes about your location, appearance, and companions, and even take your picture. If so, then it would seem that you have no reasonable expectation of privacy.
However, most people would be unhappy if they found themselves followed all day. For most of human existence, this type of surveillance was impractical because of the great expense of following someone around.
This is a good place to pause and say that this is a short essay and not a law journal article. The law of surveillance is complex, and the answers can be different if the person doing the surveillance is a government agent, an employer, or an average person, or if you’re taking pictures or recording conversations.
Is privacy in public a case of the irresistible force meeting the immoveable object? Should your location privacy deserve some protection even when you are in public?
These questions are much harder to answer today because of technology. It’s cheap to track people in public today. There’s no need to pay a private detective. Technology does it. First on the list are cell phones. Your cell phone broadcasts your location constantly to a cell phone tower, and your provider knows where you are. Cameras are everywhere, taking pictures in malls, parking lots, building corridors, on the street, at red lights, and on the highway. Facial recognition software is getting better all the time. Photos placed on the Internet can be scanned to identify individuals as well as the date and GPS coordinates where the photos were taken. Digital signage in stores and elsewhere can record behavior, approximate age, gender, and ethnicity, and can sometimes identify individuals using a variety of devices. I recommend a pioneering report on digital signage by my colleague Pam Dixon. It’s at the World Privacy Forum website.
Even though not all the technological and organizational links are yet in place, it’s not hard to envision the possibility that, in the near future, every action you take outside your home may be observed and recorded by someone. This is more or less what happens today online, where there is a good chance that some website or advertiser (and probably many more than one) records every site you visit, every page and ad you see, and every click you make.