Pubdate: Wed, 09 Nov 2011
Source: USA Today (US)
Copyright: 2011 USA TODAY, a division of Gannett Co. Inc
Author: Anthony S. Barkow, Executive Director, Center on the Administration of Criminal Law at New York University School of Law.


On Tuesday, the Supreme Court confronted the question of whether a
cocaine trafficker could reasonably expect his movements to be private
as he drove around the city selling drugs -- or whether police, without
first obtaining a warrant, could use a GPS device to track his
movements 24/7, something they could unquestionably do through an
old-fashioned tail.

Law enforcement faces a difficult challenge to keep up with criminals
who utilize advanced technology to commit crimes. Whether it is drug
dealers using disposable cellphones or terrorists communicating by
Internet, the government cannot fight today's crime using yesterday's
means. This is particularly true in an era of shrinking budgets and,
indeed, nationwide budgetary crises.

The challenge for law enforcement is to fight crime more
cost-effectively. Using new technology is one way to help answer the
challenge. Not only will it help police save money and manpower, it
will help redirect the conserved resources to other crime-fighting

As I sit on a train writing this article, regrettably I can hear every
word of every phone conversation taking place around me. But my
neighbors on the train surely know they can be overheard, and reveal
their secrets to their peril. Similarly, walking down the sidewalk, we
know that hundreds of eyes can see us, and that cameras may even
record our movements.

So purse snatchers doing sidewalk business cannot expect to steal
unseen. And when you drive down a public street, anyone can see where
you go, and you can be followed. Although we may expect anonymity in
public places, we do not expect privacy. And thus the Fourth Amendment
no more requires a warrant for the GPS surveillance of travel along
public streets than it does for a traffic camera.

If the police had unlimited resources, they could have tailed the
aforementioned drug dealer, Antoine Jones, without any suggestion that
they ran afoul of the Constitution. Merely attaching a device to the
outside of his car to accomplish the exact same task does not convert
their surveillance tactics into unconstitutionality.
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