The forgotten right to be let alone

So where in the Constitution does it talk about GPS tracking?

Well, it doesn’t. But that didn’t stop the nine members of the U.S. Supreme Court from unanimously ruling recently that the practice raises serious constitutional concerns.

Decided in late January, the case of Jones v. United States is remarkable not only because it is the court’s first ruling on privacy in a digital age, but because the justices can’t agree on why they ruled the way they did. The case, to me, also illustrates the problems of applying the plain language of a two-century-old document to modern controversies.

The decision reversed the conviction of alleged Washington D.C. drug kingpin Antoine Jones, the justices unanimously agreeing that prosecutors violated Jones’s rights when they attached a tracking device to his Jeep and monitored his movements for 28 days.

But just what right did they violate?

Justice Antonin Scalia wrote for the majority that it was the attachment of the device that violated the Fourth Amendment’s protection against unreasonable searches and seizures – in effect, the right of Jones’ property to be free from trespass.

That gets to the legal question without having to deal with the whole privacy issue, although Scalia, joined in his opinion by Chief Justice John G. Roberts Jr. and justices Anthony M. Kennedy, Clarence Thomas and Sonia Sotomayor, noted that electronic surveillance, if achieved without having to physically trespass on a person’s property, still may be “an unconstitutional invasion of privacy.” But he adds, there is “no reason for rushing forward” in Jones’ case to resolve more complicated privacy issues.

But it is those “complicated” issues – the scary specter of government using satellites to spy on its citizens everywhere, all the time, that seem central and important here, not the technical matters of the warrant against Jones. In an intense hour-long oral argument in November, the Washington Post reported, the Big Brother of George Orwell’s novel “1984″ was referenced six times.

And in separate opinions, Sotomayor and Justice Samuel A. Alito Jr. wrote of the sweeping changes technology has brought to society.

Sotomayor noted that these days Americans disclose all sorts of information about themselves as they shop or socialize online. And Alito pointed to the 322 million wireless devices in use nationally. Even arch-conservative Alito wrote that he thought the court should have addressed those technological issues instead of using “18th-century tort law” to rule on a “21st-century surveillance technique.”

“The court’s reasoning largely disregards what is really important (the use of a GPS for the purpose of long-term tracking) and instead attaches great significance to something that most would view as relatively minor (attaching to the bottom of a car a small, light object that does not interfere in any way with the car’s operation),” Alito wrote.

In a way, the contortions of the modern court make sense, because a fair number of conservative jurists want to insist there is no privacy right in the Constitution. Abortion rights, you see, are founded in privacy law, so privacy itself has become kind of subsidiary litmus test in legal circles.

But Alito’s opinion, joined by “liberal” Justices Ruth Bader Ginsburg, Stephen G. Breyer and Elena Kagan, suggests neither side has a monopoly of framers or what they might have thought of modern law.

And the troubled history of privacy law itself suggests to me the dangers of applying too mechanically the words of the Constitution.

The court first took up the issue of electronic eavesdropping in a 1928 case, Olmstead v. United States. Chief Justice William Howard Taft delivered the opinion of the court, which tried to apply the 18th-century language of the Fourth Amendment to the 20th-century issue of telephone wire tapping.

There was no search, or seizure, Taft concluded. Only a listening in on an electronically transmitted conversation. And since the wires used to carry that electronic message extended beyond the private property of the defendant, constitutional protections of a person’s home didn’t apply.

But in dissent, Justice Louis Brandeis argued the plain language of the Constitution was inadequate.

“Time works changes, brings into existence new conditions and purposes,” Brandeis observed. “Subtler and more far-reaching means of invading privacy have become available to the Government. Discovery and invention have made it possible for the Government, by means far more effective than stretching upon the rack, to obtain disclosure in court of what is whispered in the closet.”

Foreshadowing later legal agruments in favor of privacy, Brandeis suggested the language of the Bill of Rights pointed to a more fundamental principle than those specifically articulated in the amendments:

“The makers of our Constitution undertook to secure conditions favorable to the pursuit of happiness. They recognized the significance of man’s spiritual nature, of his feelings, and of his intellect. They knew that only a part of the pain, pleasure and satisfactions of life are to be found in material things. They sought to protect Americans in their beliefs, their thoughts, their emotions and their sensations. They conferred, as against the Government, the right to be let alone — the most comprehensive of rights, and the right most valued by civilized men.”

Ultimately, it was Brandeis’ view, not Taft’s that prevailed. The idea of a fundamental “right to be let alone” seems to me to transcend such ideological labels as liberal and conservative.

Like the other two branches of government, the court is deeply divided along ideological lines. Unlike the Congress and the president, however, the justices seem to be able to work together to settle legal questions. Even when they can’t agree on why they agree.

I think the founding fathers would have approved.