Friday, March 4, 2011

Government's Use of Tracking Technology: More Than A Constitutional Issue?

I have written in the past about a series of recent court cases in the United States involving the Fourth Amendment and a reasonable expectation of privacy from a location standpoint. The cases have either involved (i) law enforcements' use of GPS tracking devices to follow potential suspects for long periods of time (see e.g. this article from the Berkley Technology Law Journal) or (ii) efforts by law enforcement to obtain location data of mobile phones from telecommunications carriers (see e.g. this decision) -without a warrant.

From a legal standpoint these cases raise some very difficult and important issues regarding both the Fourth Amendment and the clearly outdated Electronic Communications Privacy Act (ECPA). I will not go into the details of either here, other than to say that courts are split in both types of cases as to whether a warrant is required before location data is collected or obtained.

However, as equal importance as the legal analysis is that the public position of the Obama administration - through the Department of Justice - in each federal case appears to have been that a warrant is not required. Their argument is that an individual does not have a reasonable expectation of privacy while in public places. (I believe without further research that this policy is consistent with all other administrations that have faced this issue.) Now, while this position is justifiable from a legal standpoint given U.S. case law, I have been increasingly concerned about the potential foreign policy and national security implications of such a position. Specifically, I wonder whether in the future the United States will be in a position to condemn what will undoubtedly be increased use of such tracking technology by authoritative regimes to suppress democratic movements - such as those we have seen recently in the Middle East.

Enhancements in sensor and software are making it relatively easy for governments to track dissidents in near real time. It also is increasingly possible to identify their likely friends, families and associates through their respective public movements. In addition, governments will be able to see as individuals begin to meet in central locations and take preventative steps before the crowd gets too big and difficult to control.

Undoubtedly, some of this technology is being already being used on a smaller scale, both in the United States and in countries around the world. However, China recently announced an official effort to begin using location information from mobile phones to track citizens' movements on a broad scale. The stated reason for the policy reportedly is to help with traffic problems. As many publications have already reported (see e.g. NYT article , Mobiledia report and Frontline) however, the potential for use (or misuse) is much broader.

The problem, as I see it, is that as the technology is used openly by Chinese authorities - and others - to monitor and quell dissent, it will be very difficult for the the United States to challenge such use privately or in the court of public opinion. After all, it has gone on record as saying that individuals do not have a reasonable expectation of privacy when in public under the U.S. Constitution. What right will it have to challenge another government taking basically the same position?

I certainly understand and appreciate the need for law enforcement (and homeland security) to use all the tools at their disposal to execute their mission. As I stated above, I also understand the legal position taken by the Justice Department attorneys in these cases. In addition, as this article points out, there are a number of other important reasons why government authorities want to obtain an individual's location as quickly and accurately as possible without having to obtain a warrant.

However, I hope that those within U.S. government responsible for foreign policy are looking at the bigger picture when it comes to tracking technology, much as they have done with respect to the role of the Internet to foster democratic values. I also hope that the Central Intelligence Agency and Department of Defense are assessing the potential impact the technology will have on collection efforts and covert operations. In developing U.S. policy regarding the use of tracking technology, it is important to consider that as effective as it is for protecting U.S. citizens at home, it may even be used more effectively to harm US interest by foreign governments not limited by our system's check and balances.

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