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Exhibit A in 4th Amendment privacy cases: technology

Fourth Amendment rulings since 1967 have significantly limited what people can expect to keep private. This shift has accelerated as technology such as smartphones and GPS have emerged.

November 07, 2011|By Carol J. Williams, Los Angeles Times
  • Chief Judge Alex Kozinski of U.S. 9th Circuit Court of Appeals said in one case: "The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory."
Chief Judge Alex Kozinski of U.S. 9th Circuit Court of Appeals said in one…

Sunset Strip bookie Charlie Katz suspected the feds had bugged his apartment, so he would amble over to a pay phone outside where Carney's hot dog joint now stands to call in his bets to Boston and Miami.

It was 1965, a time when phone booths had four glass walls and a folding door, allowing Katz to seal himself off from eavesdroppers. Or so he thought.

FBI agents planted a recording device at the booth and taped his dealings, leading to his conviction on eight illegal wagering charges. But two years later, Katz became a legal trailblazer when the U.S. Supreme Court tossed his conviction and expanded the 4th Amendment's guarantee of freedom from unreasonable search and seizure to include a citizen's "expectation of privacy."

The ruling in Katz vs. United States may have been a high-water mark, though, for recognition of individuals' right to be "secure in their persons, houses, papers and effects."

Court rulings since then have significantly limited what people can expect to keep private. This shift has accelerated as new technologies — including smartphones and GPS — have emerged.

The U.S. Supreme Court on Tuesday will take up another hot-button 4th Amendment issue: whether GPS surveillance without a warrant constitutes an unreasonable search. The case, United States vs. Jones, will decide the law on GPS tracking across the country.

Last year, the U.S. Supreme Court overturned a decision by the usually liberal-leaning U.S. 9th Circuit Court of Appeals that an Ontario police sergeant's privacy had been violated when the city's police chief read through private text messages sent from his pager. The high court said public employees — who number 20 million nationwide — didn't have an expectation of privacy when sending personal messages on company devices.

Recent federal court rulings still making their way through the appeals process have condoned police seizure in the course of an arrest of everything stored on a suspect's smartphone — photos, banking records, email and Internet traffic — regardless of its relevance to the offense prompting the arrest.

The aftermath of the Sept. 11, 2001, attacks has resulted in even more government access to personal records. Courts have upheld the broad powers that the 2001 Patriot Act granted national security agents to access email, wiretap telephones or track a suspect's Internet use, all without a warrant and in secret, preventing the targets from knowing they are under surveillance.

The Supreme Court review of privacy rights and GPS tracking comes a year after the 9th Circuit ruled that federal Drug Enforcement Administration agents didn't violate an Oregon man's rights when they entered his driveway at 4 a.m. to clandestinely install a global positioning device on his car. Authorities used the data on his movements over four months to build a case that Juan Pineda-Moreno was illegally growing marijuana.

A ruling in United States vs. Jones — a case involving the use of a car-mounted GPS device to track a drug-trafficking suspect in the Washington, D.C., area — could settle the law in the Pineda-Moreno decision and in other challenges to such warrantless monitoring by government agencies. The 4th Amendment restrictions have been harshly lamented by 9th Circuit Chief Judge Alex Kozinski, a libertarian who tends to side with the court's progressives on privacy and 1st Amendment issues.

"The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory," Kozinski wrote in an impassioned objection to the Pineda-Moreno ruling by a three-judge panel of Republican appointees, like himself.

Writing for the panel, Judge Diarmuid F. O'Scannlain said Pineda-Moreno couldn't expect to have privacy in his driveway because it had no gate, no sign against trespassing and was regularly used by letter carriers, delivery services and visitors. Furthermore, the judge noted from an earlier 9th Circuit ruling, "a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another."

Legal experts say the government now has much greater search and seizure powers than it did when Charlie Katz entered that Sunset Boulevard phone booth.

"This has become a huge issue, far beyond police putting GPS on your car, because we are all carrying around portable GPS devices," Chris Calabrese, legislative counsel for the American Civil Liberties Union, said of the tens of millions of cellphones and locating gadgets in Americans' cars and pockets.

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