Technology can be a wonderful thing. Over the years, it has given us the automobile, the airplane, the personal computer, and the cellular phone, perhaps the most versatile device each of us uses today. Cellular technology has advanced so much that, in emergencies, we can simply dial 911, whereupon the emergency dispatcher can locate us and direct emergency services right to us. But now, as it is wont to do, government has found yet another way to intrude in our lives, further eroding our constitutionally protected right to privacy.
As is well known these days, the e911 capability built into our cell phones also allows authorities to track our movements. The Justice Deparment claims that there is no expectation of privacy with regard to cell phones, and that such records are nothing more than routine business records not subject to the protections of the Fourth Amendment. Privacy advocates, on the other hand, contend that such tracking opens the door to unwarranted invasions of privacy. Says Catherin Crump, an ACLU staff attorney:
“Tracking the location of people’s cell phones reveals intimate details of their daily routines and is highly invasive of their privacy. The government is violating the Constitution when it fails to get a search warrant before tracking people this way.”
And, indeed, according to 18 USC 2703(d), government is not required to obtain a warrant in all cases. While it seems clear that most, if not all, tracking records were obtained as part of ongoing criminal investigations, it remains to be seen if the door will always remain closed to abuses. As Judge Dolores Sloviter noted:
“There are governments in the world that would like to know where some of their people are or have been. Can the government assure us that it will never try to find out these things? Don’t we have to be concerned about this? Not this government right now, but a government?”
Further problems arise because the right to privacy, at least in the minds of many government officials, is indeterminate.
“Many Americans believe that the Constitution guarantees us the ‘right to privacy,’ but that’s not the case,” says Dr. Abbe Forman, a digital ethics expert at Temple University’s College of Science and Technology.
This, of course, completely ignores the Ninth Amendment, which states that “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.” When it comes to government, is there anyone, really, who would surrender what he believes his absolute right to live free of unwarranted government intrusion into his life?
Another factor that obviates the government’s argument is that it wants to have it both ways when it comes to privacy. On the one hand, we are often told that there is no right to privacy. Yet, in 1973, in deciding Roe v. Wade (410 U.S. 113), the Supreme Court cited the right to privacy as integral to its decision.
Government’s position on its right to monitor your every move was put most succinctly when prosecuters wrote to US Magistrate Judge James Orenstein, “One who does not wish to disclose his movements to the government need not use a cellular telephone.”
Is government overreaching? Is the right to privacy one of the “unalienable rights” with which our creator endowed us, protected by the Constitution, or is it just one more thing we, the unwashed, got wrong?