Testing the Limits on Governmental Intrusion Into Personal Privacy Rights
Testing the Limits on Governmental Intrusion Into Personal Privacy Rights: Cases Raise the Question as to Whether the Police Be Permitted to Install a GPS Device on a Suspects Car Without a Warrant
Our society is continually being called upon to evaluate how far our law enforcement officials and other governmental agencies should be permitted to go in effort to protect our society. As technology develops and circumstances evolve, new threats to our privacy and civil liberties arise.
One current debate in this regard concerns whether the police should be required to obtain a warrant before placing a GPS device on a suspect’s car for the purposes of tracking that individual. The U.S. Supreme Court has not yet considered the matter but the issue is not entirely new to our courts. State courts in Massachusetts, New York, Oregon and Washington that have considered the issue have ruled that a warrant would be required before a GPS device could be installed on a suspect’s car. At present, only a single federal appellate court has rule on the issue and has reached a different result. In 2007, the U.S. Court of Appeals for the 7th Circuit ruled that a warrant was not required, thereby ruling in favor of the government.
Now, the issue is under consideration by the US Court of Appeals for the DC Circuit. In this case, the police had obtained a warrant prior to installing a GPS device on a suspect’s car. However, subsequently, there was an issue about whether the court order was faulty. The government took the position that it did not matter whether or not the order was defective, because the government did not need an order to install the GPS device.
The issue under consideration by the court is an extremely important one. While it is of utmost importance to prevent crime and apprehend criminal perpetrators, it is essential that we need become so overzealous in the pursuit of these goals that we allow civil rights to be trampled upon. Allowing law enforcement to install GPS tracking devices on vehicles without a warrant would, as the New York court warned, amount to: â€œan enormous unsupervised intrusion by the police agencies of government upon personal privacy.(People v. Weaver, available at: http://www.courts.state.ny.us/CTAPPS/decisions/2009/may09/53opn09.pdf).
The underlying issues here go far beyond the consideration of the propriety of the installation of a GPS tracking device on a single suspectâ€™s car. Technology will continue to evolve and, as it does, our law enforcement officials will develop news means of monitoring people and collecting information about their behavior. It is crucial that our laws keep pace.
The inherent tension between the protection of privacy rights and civil liberties on the one hand and the quest to ensure that society is safe and secure, on the other, is a topic that has interested me for some time. I cover one particular aspect of this, namely, the impact of the war on terrorism on privacy, in my book,War on Privacy. This book examines, on a global perspective, the years following 9/11 and explores the impact that the war on terror has had on individual privacy rights throughout the world.
In my view, the tensions between protecting individual privacy rights and ensuring the security of society will never be resolved fully. Rather, our interpretations as to what is and is not acceptable with respect to governmental intrusions into personal privacy are likely to continue to shift in accordance with pertinent factors at play in our society and our world.
Jacqueline Klosek is an attorney whose practice focuses on data privacy and security, as well as drafting and negotiating technology agreements. Jacqueline is a frequent writer and lecturer. Her most recent book is The Right to Know: Your Guide to Using and Defending Freedom of Information Law in the United States. Her prior books include: War on Privacy (Praeger, 2006); The Legal Guide to e-Business (Greenwood Publishing, 2003) and Data Privacy in the Information Age (Greenwood Publishing, 2000). She is presently working on Your Health Privacy: A Guide to Protecting the Privacy and Security of your Medical Information, a book focused on privacy and data sector in healthcare. Jacqueline (along with James R. Silkenat and Jeffrey M. Aresty) is also an editor of the recently released 3rd edition of the ABA Guide to International Business Negotiations: A Comparison of Cross-Cultural Issues and Successful Approaches. Jacqueline is a Certified Information Privacy Professional, Ms. Klosek is on the Advisory Board for The Privacy Advisor of the International Association of Privacy Professionals, and is the co-chair of the International Working Group of that organization. She is also an active member of American Bar Association, the International Bar Association and the International Association of Young Lawyers. Jacqueline has been recognized for her professional expertise. In 2004, Ms. Klosek received NJBiz magazine’s 40 Under 40 award, given annually to the top 40 achievers in New Jersey with an established record of leadership who have taken on key decision-making roles at an earlier-than-usual stage in their lives. She was also the recipient of the Telford-Taylor Fellowship in Public International Law. She may be reached through her website at: www.jacquelineklosek.com, through email at: [email protected] or on Facebook at: www.facebook.com/jacqueline.klosek
About the Book:
In today’s globalized society, the war on terror has negatively affected privacy rights not just in the United States, but everywhere. When privacy rights are curtailed around the world, American efforts to spread freedom and democracy are hindered, and as a consequence, Americans are less secure in the world. Ironically, the erosion of individual privacy rights, here and abroad, has been happening in the name of enhancing national security. This book sheds light on this apparent contradiction, and argues that governments must do more to preserve privacy rights while endeavoring to protect their citizens against future terrorist attacks. It is easy to forget that prior to 9/11, privacy rights were on the march. Plans were in the works, in the areas of legislation and regulation, to protect personal privacy from both governmental intrusion and corporate penetration. The need for such protections arose from the swift advances in information technology of the 1990s. But the attacks of 9/11, and the responses of governments to this new level of the terrorist threat, put an end to all that. Not only is privacy no longer emphasized in legislation, it is being eroded steadily, raising significant questions about the handling of personal information, surveillance, and other invasions into the private lives of ordinary citizens.
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