Dispatches from the Creation Wars

Two weeks ago, the DC Circuit Court of Appeals issued a very important ruling saying that police could not secretly hide a GPS device on your car to track your movements. Now the 9th Circuit Court of Appeals has ruled the opposite way. That means the Supreme Court will likely hear an appeal — and how they’ll rule scares the hell out of me.

In this case, DEA agents attached a GPS device to the Jeep of a suspect without a warrant, which then showed that he made many trips out into the desert, one piece of evidence in his conviction. But one of the judges, a strongly pro-Bill of Rights judge, dissented.

One of the dissenting judges in Pineda-Moreno’s case, Chief Judge Alex Kozinski, said the defendant’s driveway was private and that the decision would allow police to use tactics he called “creepy” and “underhanded.”

“The vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel’s ruling,” Kozinksi wrote in his dissent.

“I think it is Orwellian,” said Marc Rotenberg, executive director of the Electronic Privacy Information Center, which advocates for privacy rights.

“If the courts allow the police to gather up this information without a warrant,” he said, “the police could place a tracking device on any individual’s car — without having to ever justify the reason they did that.”

When the Supreme Court hears this case, the results could be surprising. They likely would not fall along that normal conservative/liberal axis with Kennedy in the middle. Justice Scalia, for example, has taken a pretty strong position in a previous case, Kyllo v U.S., that involved using advanced technology to skirt the First Amendment.

His opinion in that case was joined by Thomas, Souter, Breyer and Ginsburg. Kennedy was on the other side, as was John Paul Stevens, recently retired. Such cases do not easily fall into that simple dichotomy.