MarkCC on Good Math, Bad Math has been posting lately on encryption and privacy. As usual, technology has increased the number of ways the government can read your mail, but it has also increased the ways you can hide your communications as well. Modern open-source encryption is very secure and all other things being equal it’s much harder for the government to read encrypted email than it is for the government to open an envelope old-style. To read encrypted email, realistically the government is going to have to surreptitiously bug your computer and get your password, which (for the moment) requires a warrant and can be defended against to an extent. On balance technology has been beneficial to privacy in this case so long as you pay attention.
Some privacy-destructive technology is harder to counteract. Via Instapundit comes a Washington Post story about the police using GPS to track suspect vehicles. This is a great use of technology, and has caught many particularly nasty criminals. Great, that is, when the police have a warrant. Unfortunately many departments do such tracking without a warrant. What’s worse is that many courts have approved. What’s even worse is that the legislatures of the various states have not taken any action – since of course the courts are in theory only one line of defense. Your elected representatives are supposed to be another. From the article:
Across the country, police are using GPS devices to snare thieves, drug dealers, sexual predators and killers, often without a warrant or court order. Privacy advocates said tracking suspects electronically constitutes illegal search and seizure, violating Fourth Amendment rights of protection against unreasonable searches and seizures, and is another step toward George Orwell’s Big Brother society. Law enforcement officials, when they discuss the issue at all, said GPS is essentially the same as having an officer trail someone, just cheaper and more accurate. Most of the time, as was done in the Foltz case, judges have sided with police.
I’ve always loathed this “Some say X, but others say Y” style of reporting. Very often X and Y are both true. “Some say eating your neighbor’s cat is healthy and inexpensive, but others say it’s cruel and theft.” Both sides are true, but obviously one point carries a lot more weight than the other. Truth is a necessary but not sufficient condition for a good public policy. And to put it gently, the idea that GPS tracking is just like being followed by a human is… massaging the truth.
Glenn Reynolds of Instapundit had a pretty trenchant comment:
Question: If sticking a device on someone’s car — which is a trespass to chattels in tort — is okay without a warrant, then is it okay if I stick a device on a police car so I can track where the cops are going, and index it against a list of known donut shops? Or would they find something to charge me with? And if the latter, then why doesn’t the creativity go both ways?
Quite so. If something would be otherwise illegal, the police ought to have a warrant. Period.
With encryption and internet privacy, we pro-freedom types have a two-pronged attack. We can advocate public policy that’s respectful of privacy and the bill of rights, and we can also use encryption and good security practices to eliminate or minimize the effects of government intrusion.
That’s more difficult here. We can advocate stronger controls on GPS tracking, but until then there’s not any good way to prevent being tracked. I can think of two ways, but neither are very good. You could build a GPS jammer, but aside from the difficulty to everyone but electrical engineers, deliberately jamming legitimate radio signals of any kind is generally illegal. You could also built a device which detects the tracking device’s transmission, but that would be very difficult since you don’t know the frequency on which the device transmits. If indeed it transmits at all, since it could just passively record data until the police retrieve it. Maybe someone else will have a more clever idea.
Keep this in mind when voting for state representatives and local judges. Privacy is not always a big issue in the electorate as a whole, but believe it or not there are people out there who care about it. If the Founders though appropriate law enforcement search and seizeure rules were important enough to devote several amendments to, we should certainly treat it as an issue of profound importance.
Update: An Instalanche? Welcome! You’re likely in a decided political minority on ScienceBlogs, but there are a few token evil regressive reactionaries. By the prevailing standards here, I’m one of ’em. But it’s ok. They tell me dissent is the highest form of patriotism.