Does Big Brother Know Where You Are?

In George Orwell's classic novel "1984" the advent of advanced technology empowered a totalitarian state to take complete control of its citizens' lives.

As it turns out, computer and communications technology has largely had the opposite effect, empowering ordinary citizens to obtain instant information, form virtual groups on the web, petition and lobby their representatives, share information and develop plans to protest this or that. Unfortunately, it also has its sinister uses, such as helping terrorist groups stay in touch with disparate cells, or promoting hate and intolerance.

Of course, there's still that ability of the State to use technology to control its citizenry. There's always a fine line between legitimate "law enforcement" and "spying." We tend to think technology is okay if it's used to apprehend a "bad guy," but not acceptable if it's used to monitor someone who's views may simply be antithetical to the State. Almost of necessity, you're going to monitor at least some innocent people to catch those who are guilty.

Recently, we commented on a fairly nifty--but also scary--technology that allows police to track the whereabouts of child pornography to individual computers. (For more, see "Herndon: Child Pornography Capital of Virginia.")

Today, we noticed another new development in police surveillance technology: the use of a GPS device placed on a suspect's car to track his movements. (See "GPS Device Aided Arrest of Suspect In Va. Assaults" in today's Washington Post.)

According to the Post's story, police in Fairfax County first used a computer database of convicted sex offenders to hone in on one particular suspect in a string of sexual assaults that was making the news regularly. They then placed a GPS transmitter on his van to track his movements.

After their GPS data showed the van in the vicinity of another attack, they followed the van and managed to arrest the suspect in the act of yet another assault. It turns out the suspect spent 17 years in prison for rape, was released on parole in March, and promptly returned to his old ways. He'll likely spend the rest of his life behind bars.

UNLESS the courts rule that the use of the GPS device was unlawful.

Here's what's interesting: the detective who placed the device said it took him "3 seconds" to do so. The police did not obtain a warrant or court authorization to do so. They put the GPS device on a van parked on the street, but did not approach an auto in the suspect's driveway because it was on private property. (So, word to the wise: park in your own driveway!)

So far, the trial court here in Arlington, where the case will be tried, has said the procedure was lawful. The issue of whether such an intrusion is lawful under the Fourth Amendment turns in large part on whether a person has a "reasonable expectation of privacy" in the activity intruded upon. The Supreme Court says if you're in your own home, you have a reasonable expectation of privacy, so the police need a court-authorized warrant to intrude. (We'll see where they come out on material stored on your computer!)

But in this case, all the GPS device allowed was for the police to track the suspect's movements on the "public by-ways," which courts have generally held is not subject to any reasonable expectation of privacy. Certainly, the police can trail a suspect's car on the roads--it's the stuff of many a memorable movie scene. So, the argument goes, the GPS device is just like a police tail, but it's virtual rather than real.

We think the courts will probably allow this type of tracking if there is "probable cause," i.e., a decent reason to follow a particular person. We don't think courts would allow tracking everyone via GPS and then later looking to see where they'd been--but who knows, that could come later. (For many of us, either with GPS in our vehicles, or in our phones or PDA's, that record is inevitably being created.)

Just another reminder that in this large world, we're not nearly as anonymous as we'd like to be.