Fast Company

The Government Can Now Track You, Sans Warrant, Via GPS

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The U.S. Court of Appeals for the Ninth Circuit, which covers California and eight other Western states, just made what might be the scariest ruling of the year. You know who else thinks so? The dissenting judge, a conservative, no less, who himself made the connection to Orwell's 1984. This is bad, bad news, and the sooner it gets overturned the safer we should all feel.

The story dates back to 2007, when the Drug Enforcement Administration began monitoring one Juan Pineda-Moreno, an Oregonian whom the DEA suspected of maintaining a marijuana grow operation. DEA agents, in the words of Time magazine, "snuck onto his property in the middle of the night" and planted a GPS tracking device on the underside of his Jeep, which was parked in his driveway at the time.

Pineda-Moreno challenged this action in court, and reasonably so--the DEA agents invaded a citizen's private property without a warrant of any kind. But a panel made up of three Ninth Circuit judges ruled that the action was legal, and their reasoning is, to say the least, shocking.

The judges claimed that Pineda-Moreno's driveway is not, in fact, private, despite the fact that it is privately owned. Because the driveway is not protected by, for instance, a fence or gate, but is instead open to "strangers such as delivery men and neighborhood children"--like 99% of driveways in the country--it is not technically private.

Time points out the dual egregiousness of the decision. First, the idea that government agents have the legal right to invade and monitor a citizen's private property without a warrant, and second, that those with fences, gates, guards, or security forces--in other words, rich people--are the only ones with truly "private" property.

Further, the judges ruled that the DEA was then legally allowed to use the data gathered by the GPS tracker, in direct contrast to a decision in a similar case made by the U.S. Court of Appeals for the District of Columbia.

Chief Judge Alex Kozinski, a Reagan-appointed conservative (perhaps more accurately a libertarian), voiced a strong dissent that reads more like a flat-out attack on the official ruling. Said the judge, "1984 may have come a bit later than predicted, but it's here at last. Some day, soon, we may wake up and find we're living in Oceania." I couldn't agree more.

Dan Nosowitz, the author of this post, can be followed on Twitter, corresponded with via email, and stalked in Brooklyn (no link for that one--you'll have to do the legwork yourself).

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6 Comments

  • Nate O'Shaughnessey

    It's shaky logic as well, couldn't anyone else have driven his vehicle during the supposed illegal activity? If his vehicle came to my house at some point while being tracked, does that give them the right to then plant a GPS on my car and start tracking me too? you know, just in case? If he did go meet with another suspected or convicted drug dealer, would that prove that he was selling or transporting?

    The issue is the shacky logic and reasoning for why it was ok. People sometimes use Diagnosis Bias to justify actions. Think about if they were doing this to someone who actually was innocent? You cannot justify actions based on the presumption that someone is guilty, you just need to build a case to prove it. They are innocent until proven guilty. There is a fine line between Investigation and Intrusion. The easiest way to tell the difference is: Would it be considered invasive if they were doing it to someone who was presumed innocent? You can't justify the means by the presumed end.

    "If you give me six lines written by the hand of the most honest of men, I will find something in them which will hang him" -Cardinal Richelieu

    You can't presume a crime then follow someone until they do enough things where you could paint a picture of guilt without evidence or traditional logical deduction. It is not how could these pieces fit together, but rather how do these pieces fit together that prove a crime. Everybody has pieces of their life that they could be painted as a bad person for, that doesn't make the painting a true picture of the person.

  • Scott Byorum

    Wait a minute. Am I the only one seeing the glaring obvious? They planted a device on the underside of the jeep. The jeep IS private property. So this in itself should be illegal. It's equivalent to vandalism.

  • Nate O'Shaughnessey

    I'm not sure there is any such thing as Private Property any longer.
    Anything is subject to search and seizure now.
    If they presume you guilty already, they consider you to have no rights to privacy or personal property.

  • doug osborne

    Opposing government intrusion into our lives is a conservative position, and a good one. Unfortunately, I've had a tough time convincing conservative friends of this lately.

    My driveway is private property, end of discussion. It's not very private, however, since it can be seen clearly from public property, the street. We have to be just smart enough not to do knucklehead things in public view.

  • Dan Haege

    All 3 of the Judges on the 9th circuit in the original GPS monitoring case in January that was just upheld again were conservative judges. Judge O’Scannlain wrote the opinion for the court. He was nominated by Reagan. Judge Smith was nominated by GW Bush, and Judge Wolle was nominated by Reagan. All 3 conservative Judges agreed that GPS monitoring does not violate one’s 4th amendment right to privacy.

    The courts rationale (usually a conservative rationale regarding the 4th amendment) was that one must be protected inside a house otherwise the 4th amendment does not apply..

    In the 1970′s U.S. Supreme Court Justice Thurgood Marshall (a Liberal Judge) ruled that the fourth amendment “protects people, not places.” He would be shaking his head in disgust at this GPS ruling!

    Read the full ruling here: http://caselaw.findlaw.com/us-...