The U.S. Constitution Vs. Law Enforcement Surveillance Technology

A look at the future of  police surveillance and the US Constitution

The Intel Hub
By Michelle Jones
January 26, 2012

The Supreme Court ruled Tuesday that law enforcement could not use GPS technology to track cars or their occupants without a warrant issued by a judge.

This judgement was not expected given the Supreme Courts record on upholding law enforcements actions that trample on the Constitutional rights of the American people.

A similar case, Olmstead V. United States, came before the Supreme Court in 1928. This case involved the use of wire tapping and whether or not it violated the fourth and fifth amendments.

The plaintiffs argued that wire tapping violated Olmsteads fourth and fifth amendment rights guaranteed under the Constitution and that wiretapping was the same as illegal search and seizure and therefore in violation of the Constitutional rights of all United States citizens.

The Supreme Court justices at the time of the ruling did not see it that way, stating:

“By the invention of the telephone fifty years ago and its application for the purpose of extending communications, one can talk with another at a far distant place. The language of the Amendment cannot be extended and expanded to include telephone wires reaching to the whole world from the defendant’s house or office. The intervening wires are not part of his house or office any more than are the highways along which they are stretched….We think, therefore, that the wiretapping here disclosed did not amount to a search or seizure within the meaning of the Fourth Amendment. –Chief Justice Taft “

What caught my attention the most in the transcripts of this case were the words of the plaintiffs legal counsel regarding future technology and the governing of law enforcement.

Legal counsel argued that:

” This Court has repeatedly sustained the exercise of power by Congress, under various clauses of that instrument, over objects of which the Fathers could not have dreamed…”

This statement recognizes the burden of the Supreme Court Justices who must expound the words of the Constitution daily, interpreting each amendment and it’s meaning in an evolving technological world. The Supreme Court may have ruled that it was not illegal to wiretap but not all of the presiding judges agreed with the decision of the majority.

Justice Louis Brandeis, a presiding judge on the Olmstead case,  wrote a very strong dissent documenting his differing opinion with the majority.

Brandeis, whose impartial opinions and strong hitting evidence earned him a reputation as a ” Robin Hood ” lawyer that represented the people, often only accepted cases in which he was fighting on the side of the people and the Constitution.

High profile cases that contained infringements on the defendants Constitutional rights to privacy or free speech were often discovered to have been argued by Brandeis. He fought for the rights of the people in cases that involved freedom of speech, right to privacy, and anti trust issues.

Brandeis dissent on the Olmstead case set the tone for many future judicial decisions regarding wiretapping and the Constitutional rights of those the wiretaps are trespassed upon.

You can read the dissent here:
http://www.soc.umn.edu/~samaha/bill_of_rights/case%20materials/olmstead/olmstead_supreme_court_opinion.pdf

Read the whole transcript here:
http://www.soc.umn.edu/~samaha/bill_of_rights/olmstead_materials.htm

Brandeis vision of the possible future of technology spurred his thought provoking dissent on the dangers of allowing wiretapping without a warrant.

Brandeis argued that this decision would open the door for future Constitutional rights violations by law enforcement as technology in surveillance gathering evolved.

Foreseeing gadgets that would be able to spy on citizens and gather intelligence without being in violation of the citizens Constitutional rights were the basis of Brandeis dissent.

Brandeis wrote:

“Time works changes, brings into existence new conditions and purposes. Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet ”

The Supreme Court ruling in the Olmstead decision based on the expounding conclusions of the justices in today’s technological world have left a large gap as to where surveillance and the Constitutional rights of the people meet.

For example, GPS tracking used to require the unauthorized tampering of the vehicle being tracked by placement of the GPS monitor on the car. This action would result in a direct violation of the fourth and fifth amendments of the Constitution, based on the argument of the majority’s ruling.

Yet with further technological advancement, GPS tracking has become a grey line based on the same ruling, with companies like OnStar opening the way to tracking systems being built into the vehicles as part of their standard sales package thus eliminating the need to violate the personal property of the suspect in order to track them via GPS and therefore supposedly not violating their Constitutional rights, again based on the majority’s ruling.

With unclear defining lines of previous court rulings we find surveillance of law enforcement and the Constitutional rights of the people on the docket once again.

On the same day that the courts ruled GPS tracking by law enforcement must accompany a warrant, an article appeared in the Homeland Security News Wire that touted new technologies that will improve the safety of the public and law enforcement in the event of a high speed chase.

The article stated that:

“Thanks to OnStar, cars made by General Motors with the security and navigation system installed can be shut down remotely by law enforcement officials….”

Clearly the Supreme Courts ruling will be tested repeatedly as technology of law enforcement advances.

With the newest civilian “spy” gadget already gaining public opposition as an unconstitutional way to gather intelligence on the general public, the future is sure to see numerous more Supreme Court cases involving law enforcements use of drones and their legal legitimacy vs. the rights of the American citizens under the fourth and fifth amendments of the Constitution.

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