Reigning Bramble

Should police have the power to plant a GPS device on your car and track your movements without your knowledge, without probable cause, and without a warrant? Incredibly, this question is actually being debated by the Supreme Court. I call it incredible because police power of this sort is or should be absolutely shocking to the American conscience. Only a cop could countenance it.

Fortunately, if current reporting is to be believed, the Court seems so far to have pretty solid American instincts on this matter. They’re challenging the defense pretty strongly, equating their arguments to a justification of surveillance tactics so scary that not even the Justice Department would dare propose them (yet), and accusing the government lawyers of steering our country towards something that, in the words of Justice Breyer, “sounds like 1984.” Pretty strong words.

Let’s hope their strong words and American instincts can hold out against the specious arguments of the government lawyers. They have pointed out that police are already free to observe and record a citizen’s movements in public by traditional surveillance methods, such as staking out locations he is known to frequent or even following him in person from place to place, so what, they ask, is to stop the police from using more sophisticated tools. In other words, the cops can already use binoculars and a notebook, so why shouldn’t they be permitted to use satellites, computers, and a transmitting device affixed to our personal property to track our every movement down to the second and the yard?

Two responses to this argument are appropriate. First of all, the right to observe, monitor and record the motions of others is not exclusively a right of the police. Any person at all is free to observe and even photograph other persons in public places where they have no reasonable expectation of privacy. Does anyone seriously suppose that my right to watch you walk down the sidewalk and get in your car, even my right to get in another car and follow you, could possibly give me the right to trespass on your property to affix a tracking device to your vehicle?

But secondly and more fundamentally, the government argument here is just sophistry, what McLuhan would call a basic illiteracy about media and technology. The lawyers are claiming that the addition of a GPS device to the surveillance arsenal is only a difference in quantity. They may be right, but past a certain point, a difference in quantity becomes a difference in kind.

Justice Roberts seems to understand this when he points out that the new GPS tools would let the police “push a button whenever they want to find out where the car is. They look at data from a month and find out everywhere it’s been in the past month. That seems to me dramatically different.”

It is dramatically different, and this is just the sort of thing that technology does. It makes things dramatically different. To use McLuhan’s terminology again, new technology doesn’t just enhance old technology, it creates a new world. And the new world can be so different that the old rules for the old world don’t apply any more or even make any sense.

And the feeling I get, at least, reading the arguments of the government lawyers is certainly not that they don’t see the new world created by the new technology. They see it very clearly. And misapplying the old rules, in this case, suits them just fine.