The Tiny Constable Part II

Happy Easter! I think it’s time to talk about tiny constables again.

United States v.Jones, the 2011 Supreme Court case I mentioned last month, fits these readings well.  The issue at stake: whether or not attaching a GPS to someone’s car without a warrant was an “unreasonable search or seizure,” forbidden by the Fourth Amendment.  The court held, unanimously, that warrantless GPS tracking was unconstitutional.

As I said last time, I find this very interesting because all the Justices, even the archconservatives, agreed that GPS tracking is a technological development so revolutionary that there is no way to know what the framers of the constitution would have thought about it.  Alito tries to picture it.  “Is it possible to imagine a case,” Alito writes, “in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach’s owner?”

That situation is ridiculous, of course. It would have required, according to Alito, “either a gigantic coach, a very tiny constable, or both.” When Madison, Jefferson, and the rest of the gang argued about what a police search was, the modern reality of GPS tracking would never have entered the conversation.  So, the entire court agreed, we have to extrapolate based on the laws we have and the ideals we believe in to deal with this new situation.

In the digital age, we frequently find ourselves in tiny constable situations, where decades-old laws run up against situations with no historical parallel.  Many of the European privacy laws we read about this week are attempts to deal with just that.

Look at the “right to be forgotten” discussed in the Guardian piece.  Fifty years ago, it would be impossible to imagine that erroneous information could persist in such a way as it does online. If, when you were younger, a newspaper wrongly printed that you had been evicted, your employer would never be able to find a copy of it. And a library archiving that newspaper wouldn’t have to destroy their copy of that article.  But in 2016, the information about you online is a major part of who you are, and it is instantly available from anywhere in the world.  The EU is right to say that someone needs to be responsible for its accuracy.

Data security, too, is a tiny constable problem.  We are in a world of privacy issues that have no historical, legal, or moral precedent. I don’t think any one person knows the right answer. We need a clear public debate about what is acceptable and what isn’t, what we consider sacred and what we think is expendable.  We need to think about privacy in new ways.  Because the people profiting from our privacy already are.