Thoughts on the Proposed Mobile Privacy Legislation

There’s a very interesting proposal in the U.S. Senate. Legislation is currently being drafted that would require police to obtain a warrant before using a GPS device (or other tracking technology) on a car or cell phone in order to track a person’s location. The Supreme Court has held that the Constitution does not require a warrant for such activity.

However, Congress can enact statutes that extend privacy rights beyond the minimum requirements of the Constitution. Remember, the Constitution (particularly the Bill of Rights) is meant to serve as the floor of protection for individual liberties, not the ceiling. So, there’s clearly no constitutional issue with this bill.

However, is it good policy? That’s a more difficult question. There is no doubt that the many decades-old laws need to be updated to deal with the unique issues that modern technology creates. Some laws, especially those dealing with privacy, are woefully out of date, meaning that courts have very little legislative guidance when deciding legal issues involving today’s technology. Virtually everyone agrees that this is a problem.

Of course, there’s plenty of disagreement about how the law should endeavor to solve this problem. Obviously, civil libertarians, privacy advocates, and phone companies (which often have to participate in law-enforcement activities in a less-than-voluntary manner) would support this law.

Law enforcement agencies, on the other hand, are likely to mount a very strong opposition, and no member of Congress wants to be perceived as soft on crime.

A very good case can be made for the notion that a person doesn’t have much of an expectation of privacy with respect to their location (after all, all this technology does is reveal a person’s location, or past location, not what they’re saying or doing at that location), especially when they’re out in the open, or in a car on a public highway.

The law has another major provision that privacy advocates are likely to love (and that law enforcement, and “law and order” types are sure to dislike): it allows anyone whose location is tracked in violation of the law to sue the authority that violated the law, recovering a minimum of $10,000 in statutory damages, or whatever actual damages they suffer as a result, if they’re higher.

This is in stark contrast to what the Supreme Court has ruled constitutes an appropriate remedy for an unlawful search by the police: the evidence gathered from an illegal search cannot be used in court. But the constitution does not require any monetary compensation.

While I can understand the sentiments behind requiring a warrant for “searches” like this, I don’t know if the monetary compensation for violations of the law is necessarily warranted. After all, most violations of the constitution don’t entitle victims of such violations to compensation, unless a statute has been enacted that specifically authorizes it.

Of course, this law is presumably motivated by the idea that the constitution, at least as the Supreme Court currently interprets it, does not go far enough in protecting privacy. It could follow from that premise that the constitution also does not go far enough in providing specific redress for violations of its provisions. While I understand the desire to provide victims of lawbreaking by public officials redress, statutory money damages to criminal defendants, even when they’re warranted, often have a very negative PR effect. Every once in a while, we hear about a criminal defendant suing a police department for brutality or other violations of the law. In addition to sometimes getting charges against them dropped, the former defendant sometimes ends up collecting a large sum in monetary damages.

Again, there are plenty of cases where the facts warrant this. However, it’s very easy for talking heads in the media to selectively report the facts, and spin the situation into “just another case of a criminal getting a tax-dollar payday because of some little technical flub on the part of the police.” And then there is much wailing, rending of garments, and gnashing of teeth.

Obviously, legislators shouldn’t let a bunch of ratings-driven TV and radio pundits dictate government policy, especially when it comes to matters of individual liberty, but it’s naïve to say that it doesn’t happen. Most members of Congress want to be reelected, after all.

Ultimately, however, I think it’s more important that Congress and/or the federal courts fashion clear rules for police departments when it comes to using this technology, than what those rules actually entail. There have been many, many laws and Supreme Court cases that have reduced the discretion of police to conduct warrantless searches, wiretaps, and other invasions of privacy. Police departments complained that these rules made their jobs more difficult, and allowed some criminals to go free.

In the short term, they were probably right. However, police departments have proven themselves to be adaptable, and have been able to effectively investigate, arrest, and prosecute suspects, despite the constraints that have been put on them in recent years.

Ultimately, if this law does pass, I have no doubt that police departments and the FBI will continue to prove adaptable.