Jun 032012
 June 3, 2012  Posted by  Court, Surveillance, U.S.

Impressive technology raises privacy concerns.  Erica Goode reports:


At 7:22:07 p.m. on a recent Thursday evening, an electronic alarm went off in the soundproofed control room of a suburban office building here.

A technician quickly focused on the computer screen, where the words “multiple gunshots” appeared in large type. She listened to a recording of the shots — the tat-tat-tat-tat-tat of five rounds from a small caliber weapon — and zoomed in on a satellite map to see where the gun had been fired: North 23rd Street in Milwaukee, 2,200 miles away.

At 7:23:48, the technician, satisfied that the sounds were gunshots, sent an alert to the Milwaukee Police Department. Less than two minutes later — or 9:25:02 p.m. Wisconsin time — a tactical team arrived at the address to find five .22-caliber shell casings and a bleeding 15-year-old boy who had been shot in the arm.

While much of the news story notes the benefits and cost issues, it also raises a privacy concern:

In at least one city, New Bedford, Mass., where sensors recorded a loud street argument that accompanied a fatal shooting last December, the system has raised questions about privacy and the reach of police surveillance, even in the service of reducing gun violence.

I had linked to that New Bedford case back in January because the technology does raise privacy and surveillance issues. The notion that we have absolutely no expectation of privacy in public spaces is – thankfully – undergoing some re-examination after the Supreme Court’s decision in the GPS tracking case, United States v. Jones. I think that taken to its logical extreme, the no expectation standard would imply that law enforcement could put boom mics on every other building and capture all of our private conversations on the street.

The surveillance state that would result would rightfully be rejected by most Americans, but unless the courts catch up with technology, what really prevents such surveillance? State wiretap laws often prohibit recording unless both parties consent to recording, but if the Department of Justice is sticking to its position that it can record us in public with no warrant or court oversight, then we should expect to see more cases wind their way up to the Supreme Court until the court goes beyond its narrow ruling in Jones to establish a standard for cases involving government surveillance where they are not attaching devices at all. Boom mics or sensors do not implicate property trespass (the basis on which Justice Scalia held that a “search” had occurred in Jones). While not all justices agreed with basing the decision on property trespass, the narrow ruling leaves many important questions unanswered. And given that the drones are coming, the drones are coming! such issues are timely.

On some level, the New Bedford case strikes me as more akin to Florida v. Jardines, which the Supreme Court has yet to rule on. In Jardines, the court considers the question of whether a drug-sniffing dog on the suspect’s porch constitutes a “search.” But even that case won’t get us to the broader situations of technology deployed in large public spaces where there is no reasonable suspicion or probable cause to collect information on a citizen and a sensor happens to capture something incriminating. Or what would happen if an overhead drone deployed by law enforcement just passing by happens to capture evidence of a crime. Would the courts allow the prosecution to use such data or would the evidence have to be suppressed on Fourth Amendment grounds? Criminal and constitutional lawyers may know the answer to that one, but I don’t.

So… is it “Citizen Beware” where if we speak in public, courts will hold we had no reasonable expectation in our conversations because we should have known that sensors could record us, or will some respect for privacy prevail?  I hope the latter, but I don’t think it will be easy for the Supreme Court to undo years of rulings based on Katz and to acknowledge that while it seemed appropriate at the time, “reasonable expectation of privacy” – and “third party doctrine” may need significant upgrades for a digital world.

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