In order to thoroughly examine last week's ruling by the Fifth Circuit U.S. Appellate Court authorizing warrantless tracking of cellular customers, it is first necessary to understand key legal precedents surrounding the Fourth Amendment.
The most recent ruling by the Fifth Circuit is based on an obsolete understanding of the amendment which is inconsistent with the modern interpretation of the amendment by the Supreme Court. This modern interpretation states that the protections of the Fourth Amendment extend to immaterial possessions.
At its most basic level, the Fourth Amendment governs the relationship between the government and the individual and details the individual's right to privacy. This relationship was tested during arguments delivered in 1913, when in Weeks v. United States (1914), the Supreme Court unanimously ruled that a warrantless seizure of goods from a private residence is a violation of an individual's protection from unreasonable searches and that evidence seized in this conduct was inadmissible in a federal court. This ruling set the stage for several pivotal Supreme Course cases that would eventually produce a new, more comprehensive interpretation of the Fourth Amendment.
In 1928, the Supreme Court held in Olmstead v. United States that the Fourth Amendment's provision for protection of "unreasonable search and seizure" did not apply to wiretaps because, as Chief Justice William Taft wrote in his majority opinion, Olmstead was "voluntarily transacting business" over the telephone and there was no "physical invasion of his house 'or curtilage.'" In Associate Justice Louis Brandeis's dissenting opinion, he argued that with new advances in technology, the government expands its ability to invade individual privacy in further-reaching and subtler ways. Brandeis posed the question: "Can it be that the Constitution affords no protection against such invasions of individual security?"
Brandeis pointed to Boyd v. United States (1886) in which Associate Justice Joseph Bradley wrote in the majority opinion that: "The principles laid down in this opinion...apply to all invasions on the part of the government and its employees of the sanctity of a man's home and the privacies of life. It is not the breaking of his doors and the rummaging of his drawers that constitutes the essence of the offense; but it is the invasion of his indefeasible right of personal security, personal liberty, and private property."
In Bradley's opinion, it is not solely the physical search and seizure of one's property that violates the Fourth Amendment. He argued the violation of one's intangible personal and private spheres is ipso facto unconstitutional. From that, Brandeis extrapolated that it is the simple examination of the contents seized that violates the Constitution. He argued that whatever the process was to obtain the goods and wherever the goods were obtained are irrelevant. The mere act of an officer extracting information from the goods is forbidden by our Constitution.
Brandeis was finally vindicated in 1967 when the Supreme Court overruled Olmstead v. United States and produced its landmark ruling of Katz v. United States. This ruling legally extended the applicability of the Fourth Amendment to all physical areas where an individual has a "reasonable expectation of privacy" and classified immaterial intrusion of privacy with technology as a "search" — thus, a physical trespass was not a prerequisite for a violation of Fourth Amendment rights.
In the majority opinion, Associate Justice Potter Stewart wrote: "The Government's activities in electronically listening to and recording the petitioner's words violated the privacy upon which he justifiably relied while using the telephone booth and thus constituted a 'search and seizure' within the meaning of the Fourth Amendment." This held that physical intrusion is not required to violate an individual's Fourth Amendment rights and that irrespective of the location, a personal conversation is secured from "unreasonable search and seizure" if it is conducted with a "reasonable expectation of privacy."
However, it was Associate Justice John Harlan II's concurring opinion in the case that established the test for determining whether a government activity constituted a "search." The test evolved into a two-pronged requirement in order to determine the existence of privacy rights: "First, that a person have exhibited an actual (subjective) expectation of privacy and, second, that the expectation be one that society is prepared to recognize as 'reasonable.'"
Fast forward to 2012, where satellites and Global Positioning Systems (GPS) can stream a person's every movement, and the ability for the government to invade privacy in new and subtler ways, as Brandeis forewarned, is greater than ever before. In January of last year, the Supreme Court issued a significant ruling in United States v. Jones where police investigators installed a GPS tracking device on Antoine Jones' vehicle and monitored his movements for 28 days. The court ruled that "the Government's installation of a GPS device on target's vehicle, and its use of that device to monitor the vehicle's movements, constitutes a 'search'" in the purview of the Fourth Amendment. In the majority opinion, Associate Justice Antonin Scalia argued that GPS tracking of the vehicle was a search and proceeded to be a violation of a "reasonable expectation of privacy."
Plainly speaking, without a warrant, the tracking of American citizens and the subsequent data collection is unequivocally unconstitutional, intrinsically nefarious, and is an issue that needs to be promptly addressed. Americans have a fundamental right to privacy and personal security, and any violation of these freedoms should not be allowed to stand in the 21st century. Unless directly confronted, the unfettered encroachment into the personal lives of American citizens will be the greatest threat to freedom, liberty, and our way of life.