GPS, Big Brother, and the economies of scale

The Supreme Court is considering a case, U.S. v. Jones, 10 - 1259, which has all the implications of Orwell's 1984. Police conducted surveillance on the defendant through the use of a GPS device placed on his automobile, and the issue is whether warrantless surveillance is permissible under the Fourth Amendment, and to what extent.

The government is arguing, predictably enough, that GPS surveillance is always permissible, since the same results could be obtained by an officer or team of officers conducting visual surveillance. In other words, if you are in public, anything you do is by definition not private.

It's an argument which is misleading by virtue of oversimplification. The fact that you are in a public place as part of going about your business does not lay bare all your business to the public. Think about it - if you go to your bank, does a policeman have the right to intercept you on the public sidewalk and demand account numbers, balance information, passwords? Of course not, and that's one reason why the argument is invalid. Just as the availability of simple and easy electronic surveillance does not give carte blanche to the government to conduct warrentless electronic searches, the fact that a person is in public incident to conducting business should not give license for warrantless tracking of an individual's whereabouts. Police can and should get a warrant if they have legal cause.

There is another consideration which should give the Court pause.

Electronic surveillance is inherently a low-cost method of tracking an individual. Turn on the GPS, and a computer keeps track of the individual for you. Furthermore, economies of scale will apply here. Most newer cars have some form of built-in GPS, and many individuals have services like GM's Onstar which keep track of their cars; all the government has to do is interface its computers and it can get real-time updates on all those cars. The government's costs to conduct surveillance, per individual, go down as the number of people under electronic surveillance goes up. And it can do this with your cellphones, too. Wecome Big Brother.

While the same information is obtained by visual surveillance, the same criteria for conducting surveillance do not apply. It is expensive to deploy officers for surveillance. If visual surveillance is to be conducted, there must be a strong reason to justify that use of officers, and the expenditure of time and money. It is this justification process which protects the individual from thoughtless and baseless surveillance.