Does Court Ruling Mean Government Can Follow Us Anywhere?

Lora Bentley
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Check out highlights from Lora's poll of industry experts on the topic of online security.

Last week, the U.S. Court of Appeals for the Ninth Circuit ruled that law enforcement officials did not violate an individual's privacy rights when they attached a GPS tracking device to his vehicle, which was parked in his driveway, then used that device to track his movements and collect evidence of his drug offenses. This was done without a warrant.


The court decided that law enforcement's actions were legal because the defendant did not have a legitimate expectation of privacy in his driveway. The driveway was "open to strangers, such as delivery people and neighborhood children, who could wander across it uninvited," the court said.


According to Time magazine, the problem that Ninth Circuit Chief Judge Alex Kozinski has with that decision is that the driveways of those who can afford gates are not "open to strangers." In essence then, the rich are afforded the expectation of privacy, while the less fortunate are not.


In his dissent from the majority opinion, Kozinski wrote:

There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist. No truly poor people are appointed as federal judges, or as state judges for that matter.

He also said his colleagues in the majority are guilty of "cultural elitism."


More disturbing to Time writer Adam Cohen, however, was a secondary ruling by the majority. The court also decided "that once a GPS device has been planted, the government is free to use it to track people without getting a warrant." Cohen noted:

[I]f government agents can track people with secretly planted GPS devices virtually anytime they want, without having to go to a court for a warrant, we are one step closer to a classic police state.

Rulings of the Ninth Circuit are controlling in California, Washington, Montana, Oregon, Idaho, Nevada, Arizona and Alaska. And often, what happens first in the Ninth Circuit makes its way across the country to the rest of the appellate circuits.


Cohen's concern is understandable, but he may be overreacting a bit. At the least, his concern is premature.


Yes, rulings in the Ninth Circuit can be harbingers of what will happen in the rest of the country, but they don't have to be. Especially when, as in this case, decisions in the other circuits on the issue are mixed. It's highly likely that the decision will be taken to the U.S. Supreme Court. I haven't seen the opinion, but it may be that the decision is specifically confined to the facts in this case and that the Ninth Circuit does not plan to apply it broadly.


Whatever the end result, it's clear that privacy concerns involving technology extend far beyond the Internet.

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