Thursday, September 15, 2011

This Privacy Issue....

Adam Cohen in this article discussed a ruling that was passed by the US Court of Appeals for the Ninth Circuit in 2010. The court upheld the decision of a lower court to allow evidence gathered using an unauthorized surveillance system (a GPS tracker) to indict an individual. The Drug Enforcement Administration (DEA) gathered evidence against Pineda Morendo using a GPS tracker attached to his car while parked in his driveway. Cohen contended that Morendo’s privacy rights were invaded because he  had an expectation of privacy in his driveway and the DEA required a warrant to install the GPS tracker.
On this points, Cohen faulted the court ‘s ruling and noted the dissension of one of the judges on the Orwellian nature of the ruling. He observed that if government is allowed to intrude into people’s privacy especially  people of modest means, it portends a dangerous future for the US. This article showed how digital technologies make our behavior “monitorable and searchable” (Lessig, 2006: 203).
In his book Code 2.0, Lessig noted that there  that there are 3 conceptions about privacy which are “preserving dignity, minimizing intrusion, and a way to constrain the power of the State to regulate behavior”. A review of the case (read judgment here) shows that the  initial tip the DEA  had was an agent saw a group of people buy fertilizer used to grow marijuana, tailed the car and a GPS tracker  was installed 7 times on the car (once while the car was parked in his driveway and the other times  the car was parked in public spaces). I believe that the DEA should have obtained a warrant when the tracker was installed while the car was parked in his driveway.

In this case two values conflicted;  An individual’s privacy and protection from unreasonable searches (minimizing intrusion) versus law enforcement. What expectations of privacy did Morendo have in his driveway? The Court stated that Morendo did not have an expectation of privacy because he did not have a “no trespass sign” or fence around his driveway. The court also allowed warrantless GPS tracking. I enjoy watching series on crime and law (Suits and law and order). From what I understand prosecutors are not allowed to use evidence illegally obtained or not obtained in good faith so I was surprised that  court allowed the evidence to be stand. Allowing such searches I believe is an invasion of privacy that may be abused. See a related case here. On the Morendo case, I submit that the method used by the DEA was unethical because as Lessig argued in the use of digital surveillance “no action –including a subsequent search- can be taken against any individual without judicial review” (Lessig  had earlier asserted that the restrictions that apply to traditional surveillance need not apply to digital surveillance except on some conditions).The DEA should have obtained a warrant since from the information available, they had reasonable suspicion.

 An alternative is that the DEA could have obtained legally Morendo’s mobile footprints to track his locations and movements from his phone service provider. I understand that cellphones have the capacity to  track the location of individuals.The agency would have achieved the goal of apprehending a suspect. Here, architecture and law would have combined to regulate behavior. This alternative is less intrusive than installing a GPS tracker. The decreasing cost of gathering information has given others access to our mobile and internet footprints. In addition, when we share information about ourselves in public we give up “any right to privacy” (Lessig,2006; 217) so Morendo does not have an high degree of expectation of privacy on his movements. Another aspect I agreed with Lessig is on how we need to protect ourselves regardless of the laws that exist. As the author pointed out we still bolt our  windows and lock our doors even though laws exist that make trespassing illegal. The present architecture of the Internet has made protection of privacy difficult and the solution may be the establishment of boundaries.

What are the difference in the values?
In the original idea, the DEA installed a tracking device on an individual’s car while parked in his driveway and gathered evidence using that tracker to make an arrest. Here, it was a case of an individual’s fourth amendment right against the an agency’s ability to carry out its mandate. As stated earlier, if the DEA had obtained a warrant to install the first GPS and the subsequent ones, Mr. Morendo may not have been able to state that his rights were violated. In the alternative idea values in conflict are a mobile company ability to use the records it has on a customer to help a law enforcement agency versus the company’s “loyalty” to it client. I contend that the second alternative is more acceptable because a law currently exists  that permits such powers and neither offends an individual's dignity nor intrudes on their privacy. A fallout of the case is that some illegal immigrants were arrested with Mr. Morendo;the GPS tracking device served two purposes which Lessig argued against. 

As public administrators we have to satisfice and make decisions. “Do nothing” is not an option, We however have to weigh how our decisions advance the greater good while also protecting individual rights.

Here is another interesting article on how "dangerous" location data is.

Have a great weekend

No comments:

Post a Comment