Privacy? How quaint!

Several years ago I heard about a case from colonial New England in which a woman was accused of being a prostitute. One of the prosecution's witnesses was a neighbor who, seeing the woman admit a strange man to her house, went into the woman's yard and opened a shutter to look in through the window, thus catching the couple flagrante delicto. What struck me about the case was that no one, including the defense, seemed to think the neighbor's actions strange or intrusive. I thought about how far we had come in matters of personal privacy.

Well, screw that. At least as far as officialdom is concerned, the more we progress the more we revert. From the Times-Union (Albany, NY) for last Tuesday:

In a decision that could dramatically affect criminal investigations nationwide, a federal judge has ruled police didn't need a warrant when they attached a satellite tracking device to the underbelly of a car being driven by a suspected Hells Angels operative.

The case arose in connection with the prosecution of members of an outlaw biker group accused of dealing in speed. As part of surveillance, police attached a global positioning satellite (GPS) device to the car of one Robert Moran and tracked him driving to various locations in New York state. The defense moved for suppression of the records on the grounds that it was obtained illegally. US District Judge David Hurd disagreed.

Hurd opined that authorities wouldn't need a warrant had they decided to follow Moran, so using a GPS device was merely a simpler way to track his car "as it traveled on the public highways," he wrote. "Moran had no expectation of privacy in the whereabouts of his vehicle on a public roadway. Thus, there was no search or seizure and no Fourth Amendment implications in the use of the GPS device."

Hurd's ruling follows a line of reasoning that's widely supported by many law enforcement agencies. Police contend using tracking devices is no different than if they followed a suspect's vehicle in their own cars or by using helicopters.

But of course it's different and Hurd's decision is logically wrong and constitutionally dangerous.

Wrong? Of course it is. There is clearly a difference between being there and not being there, between presence and absence. Trailing someone by car or in a helicopter requires the actual physical presence of an investigator. Using a planted GPS device not only allows remote monitoring, the monitoring doesn't even have to be in real time. It can be recorded for later perusal at leisure.

Dangerous? Of course it is. For one thing, our Constitutional guarantees are not supposed to be constrained by what is "simpler" for police. But it's in the phrase "no expectation of privacy," the favorite excuse of those who think of the first ten amendments as impediments to their power rather than as protections of their rights, that the real danger lies. With no one, no person, actually watching him, with no police presence anywhere near, still Moran was being monitored mile by mile, minute by minute. When our "expectation of privacy" is limited only to those areas and times when we are not subject to surreptitious monitoring or examination by our most advanced technologies, an arena which thus continues to shrink with every new advance, we are truly at risk of a time when our shutters can be opened so someone can look inside just to see if they can catch us at something - because after all, how could we have an "expectation of privacy" when our shutters could be opened?