Scott Greenfield comments on a recent 9th Circuit decision allowing officers to place “a GPS device on the underbed of a suspected drug dealer’s car while it was parked outside of his house” without a warrant. The court found that the defendant did nothing to show he had an expectation of privacy in his driveway, such as putting up gates, security monitoring, hiding the driveway from the street in some way, etc. Greenfield focuses on Chief Judge Alex Kozinski’s dissent, in which Kozinski notes that the court’s decision amounts to a rule that rich people who can afford such privacy and security measures will still be able to enjoy an expectation of privacy in their driveways, while poor people will not. Kozinski’s larger point is that the judiciary (at all levels) is made up almost exclusively of wealthy people who do not understand, or even really think about, the lives of the poor. That means judges have no idea how the majority of Americans live in a country where 69.8% of the wealth is owned by 10% of the population.
So Judge Kozinski is precisely right about the fact that the judiciary is reserved only for wealthy elites (not necessarily the super-rich, although they are well-represented, but people who never really have to worry about paying the bills). Sadly, the same can be said for our other branches of government. Sure, occasionally a poor or working class person might make it into the House, but the Senate? The executive? Forget about it. Call it aristocracy, plutocracy, or oligarchy, our system of government is anything but equal and democratic.
But the shrinking of the Fourth Amendment represented by decisions like this is just as troubling. The whole “expectation of privacy” test was developed in 1967 in Katz v. U.S., a time when constant, nearly-invisible, electronic monitoring of a person’s every movement (GPS) was not possible, nor even really conceivable. Here, the court has found a perfectly logical way to explain why this particular person doesn’t have a reasonable expectation of privacy in his driveway, but what about in every move he makes in his car? Is it unreasonable for an average person to think that his/her every movement is not being tracked and automatically broadcast to the government? Sure, my car might be traveling on the public roads where the government could watch or follow its every movement, but it’s one thing for the government to do that electronically and invisibly, and a completely different thing for the government to do that physically, so that if I was paying attention I might notice the surveillance. The court’s answer to the driveway question is horrible, but that question almost misses the larger point, which is the electronic and invisible tracking of my every movement by the government without a warrant. In what world is this ok? Ours, apparently — unless you have the money for a gated driveway. But then, the government can just tag your car with the lojack when you’re at the supermarket, right?