Tracking

By Marc Resnick

First some background.  The 4th Amendment is one of the most important of the Bill of Rights, but is also one of the least discussed.  This is the one that says “The right of the people to be secure in their houses, persons, papers, and effects against unreasonable search and seizures, shall not be violated.”

The 18th century textbook example was the police breaking into someone’s house to find evidence of a critic of King George III.  The founding fathers wanted to protect citizens of the new country against this.

At first, the Supreme Court took these categories (houses, persons, papers, and effects) literally.  Anything that wasn’t in one of these categories was fair game for police to search to their hearts desire without a warrant (a warrant  is one of the things that  makes searching these four categories reasonable).

But technology changes the world and our law has to change with it.  Even with Justice Scalia’s idea of original intent, we can’t ignore the world changing around us in our interpretation of the Constitution.  With the 4th Amendment, it was Justice Brandeis in the 1920s who made the first judicial leap.  Rather than stick to these four categories, or passing Constitutional Amendments every time a new technology was invented, he thought it made sense to consider the extent of the typical citizens expectations of privacy in 1800 for these four categories and then apply that level of privacy to new technologies.  So instead of saying that wiretapping telephones is allowed because it doesn’t require going into a house (it can be done at the telecom junction), thought that this was as intrusive in 1920 as going into the house would have been in 1800.

In 1920, Brandeis had the minority opinion.  But in 1967, the rest of the court agreed with Brandeis.  The standard shifted from literally the four categories written into the Constitution to “reasonable expectation of privacy.”

The reason this is important today is that the Supreme Court is currently consider a case that could set the precedent for another hundred years.  And it is important to us because it involves technology that many of us use in IE, including human factors, supply chain, logistics, management, and more.  The question revolves around whether the police are only limited to existing explicit categories (which now includes wiretapping because of the 1967 decision) or whether the court has to continuously evaluate new technologies with respect to the standard of what citizens current perceive as “reasonable privacy.”

The specifics of the case are pretty straightforward.  The police put a GPS tracker on a car and mapped out everywhere it went and how long it stayed there 24 hours a day over the course of several weeks.  The \police argument is that they could have followed the car around and recorded exactly this same information and that would have been legal.  All they did was use new technology to save money.  There is nothing unconstitutional about that.  I initially thought that this side had such an obviously strong case that is was a nobrainer who should win.  Why would the Court even take the case?

Then, I read another opinion that muddled my opinion.  If a suspect is the equivalent of Al Capone, the police may be willing to spend the money for a 24/7 tail.  But with GPS, they can do it with every random person of interest.  “Round up the usual suspects” so to speak.  So before, the typical citizen had an expectation of privacy, not because the police COULDN’T track them, but because they weren’t worth the effort.  So now that anyone can be tracked, it makes sense that unless it is Al Capone, the police should need probable cause, which is the standard to get a warrant.  This puts the amount of privacy one gets at about the equivalent of what the original 4th Amendment provided in 1800.

I used to think it was a no brainer that the police could use the GPS tracker without a warrant.  I was convinced that all they were doing was saving money compared to what they could already do legally.  But Justice Brandeis convinced me, even 90 years later.  Now I think it is a no brainer that they should need a warrant.  I love when that happens.  I really learned something today.

Of course, the 4th Amendment only constrains government law enforcement.  Google, Facebook, Apple, and all other private companies are still able to do this.  Remember when Apple got some really bad PR because they were tracking iPhones without asking permission or providing an opt-out that anyone could find?  This was legal, but they stopped because of the publicity.  With the growing prevalence of security cameras, photo uploading, etc., it won’t be long before these private companies can know everything about us there is to know.  Click on a headshot, put it into Google Image Search, and find out everywhere the person has been 24/7 for weeks.  The police couldn’t do it, but advertisers could.  Jealous spouses could.  Employers could.

I am philosophically against legally constraining innovation when not absolutely necessary.  If a company wants to try out a product or service, let the market decide.  But perhaps something might be necessary in this case because it can be used without the market (customer/spouse/applicant) ever finding out.

OK, now some specific IE applications.  Employers can track workers, products, equipment, company laptops and cellphones (or eavesdrop in them) at will.  We have GPS, RFID, NFC, and more. Do you take advantage of this power?  There is still a standard of “reasonable expectation of privacy” but the standard is different.  Employees can’t expect privacy on the company cell phone.  But if you were to hide a GPS in the pocket of the uniform they take home from work, that would put you in the gray area.  The uniform belongs to the company, but you violate the expectation.  What about tracking the smartphone that they have to take home because they telecommute?  If you track it 24/7 you might be violating a pretty reasonable expectation.  But during the employee’s work hours maybe not.  But you may be opening yourself up for a lawsuit so be careful.  Think about what is reasonable for employees to expect.

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