If there's a trait common to politicians, it's their instinct to avoid making tough choices. Members of Congress prefer to delegate policy decisions to federal agencies or the judiciary so someone else can take the blame when constituents are upset. There's plenty of disappointment to be found in a 6th Circuit U.S. Court of Appeals decision from last week granting police free rein to track individuals through GPS location chips built into nearly all cellphones.
In this particular case, U.S. v. Skinner, Drug Enforcement Administration investigators went to the trouble of obtaining a court order before asking a wireless service provider to hand over real-time location information on a suspect. Nevertheless, the three-judge panel found a warrant was "not necessary" and getting one only "strengthened" the legitimacy of the government's case. The 6th Circuit reasoned the GPS surveillance was nothing more than the electronic equivalent of following a criminal's footprints left in the snow. Because the agents obtained this information without any physical trespass, the judges avoided the Supreme Court's recent precedent in United States v. Jones, which requires a warrant before a GPS tracker can be attached to an automobile.
It's hard to fault jurists for undermining privacy in one case and protecting it in the other. Rulings are going to be contradictory because they involve interpretation of federal surveillance statutes that were drafted back in the days when people used pay phones and everything was hard-wired into the communications network. Instead of asking the least accountable branch of government to divine congressional intent, Congress should man up and say exactly what it means.
That's what Rep. Edward J. Markey, Massachusetts Democrat, intends to do with his Wireless Surveillance Act of 2012. His office is circulating a draft proposal that generally would prohibit anyone from accessing "the geolocation information of a person for protective activities or law enforcement or intelligence purposes except pursuant to a warrant." That means police could use the latest gadgets to catch the bad guys so long as they have probable cause to investigate -- precisely as the Fourth Amendment requires.
Absent such a clear legal framework, government authorities can operate without restraint, free to track everyone's every move. Though the initial intent in such surveillance will be crime-fighting, that can change over time when there's no third-party oversight. It's just as easy to use the spy devices to keep tabs on an ex-wife or a political enemy as it is to monitor a suspected drug dealer. This is all the more true because -- in addition to cellphone GPS -- officials also use toll-road transponders and automated license-plate-recognition cameras to create long-term histories of where people go, and when.
The public ought to have a say in whether this snooping is appropriate. Federal agents also deserve to work under clearly drawn rules so they don't find the results of their investigations overturned later by judges. Mr. Markey is right to kick off the debate. Hopefully lawmakers can be forced to take a clear stand that voters can take into account on Election Day.
The Washington Times
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