 Where you go and who you meet are some of the most revealing facts about you. Does this intimate information deserve to be included within the Fourth Amendment’s protections against “unreasonable searches and seizures”? This question has new force in the wake of the U.S. Supreme Court’s landmark decision in Chatrie v. United States. That ruling strengthened constitutional protection for one form of Americans’ location history – the records of our movements generated by our cellphones and held by third parties like Google. A case before the Fourth Circuit Court of Appeals, Schmidt v. City of Norfolk, extends this concept to the city’s use of automatic license plate readers (ALPRs) in that Virginia city. The plaintiffs demonstrate that Norfolk’s network of cameras continuously photographs them and their vehicles, stores that information, and allows police to reconstruct weeks of their travel history without a warrant. That case, once seen as a bit of a stretch by many legal observers, suddenly looks much more viable after Chatrie. In Chatrie, Justice Elena Kagan wrote the Court’s majority opinion that declared that Americans retain a reasonable expectation of privacy in their location information, even when it is held by a third party. The Court emphasized that the Fourth Amendment must protect citizens against “too permeating police surveillance” and rejected the idea that privacy disappears merely because modern technology records information shared with companies. Those same principles extend naturally to ALPR systems. As PPSA explained in our amicus brief before the Fourth Circuit, the constitutional issue is not whether a single license plate can be seen on a public road. It is the government’s ability to aggregate thousands – or millions – of those observations into a searchable database capable of reconstructing “the whole of a person's physical movements.” The brief warns: “The relevant constitutional question here is whether the government used surveillance technology to collect and aggregate location records that allow retrospective reconstruction of a person's movements. ALPR databases do exactly that.” These retrospective insights go well beyond license plate readers. Modern surveillance increasingly depends on collecting seemingly innocuous bits of location information – from the apps on our cellphones, cellphone records, GPS and vehicle tracking, facial recognition hits, drone footage, and our personal information sold by data brokers to the government. These can all be combined into a detailed dossier on any individual. Each data point may appear harmless. Together, they reveal where we sleep, worship, seek medical care, attend political meetings, and with whom we associate. PPSA's brief argues that this is exactly the type of technological transformation the Supreme Court warned about: “What matters for the Fourth Amendment is the state's use of technology to convert innumerable public-facing moments into a searchable log of a person’s life, not the innocuous nature of any single data point taken alone.” Chatrie may ultimately be remembered not simply as the geofence warrant case, but as the decision that reaffirmed a broader constitutional principle for a host of pervasive forms of surveillance. If that principle is faithfully applied, courts will soon have to ask difficult questions not just about geofence warrants, but about ALPR networks, facial recognition systems, AI-enabled camera platforms, and every other technology that enables the government to reconstruct the movements of ordinary citizens without first obtaining a warrant. The fuse has been lit. Now comes the hard work of ensuring that the Fourth Amendment keeps pace with 21st-century surveillance. Comments are closed.
|
Categories
All
|
RSS Feed