The Ninth Circuit Court of Appeals ruled by a narrow margin that without a warrant police can sneak into your driveway at night and stick a GPS tag on your car so they can remotely monitor your travels.  The 4th Amendment weeps.

Curiously, the case was all about whether or not police had the right to enter the man’s driveway to attach the device.  A point which is likely to be appealed since there is a longstanding precedent for courts recognizing a person’s reasonable expectation of privacy in their homes and in the “curtilage,” a legal term meaning the area around the home.  Of larger concern is the apparent legality of the police tagging the car if only they’d had the good sense to get it while it was parked outside the Wal-Mart.

Adding complexity is that while the California court ruled in favor of warrentless GPS tracking, the D.C. Federal Circuit Court ruled firmly against the practice.  The court argued, “It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person’s hitherto private routine.”

Meanwhile, the Obama administration has argued repeatedly that such tracking is legal.  It has defended not only the tagging of vehicles, but the tracking of personal cell phones without any burden of probable cause.

The reality is that it is now cheap and easy to track anyone’s whereabouts, as well as monitor a number of conversations, and most financial transactions.  These bits of data can be gathered, compiled, and assembled for the most part without the cops ever leaving the precinct.  And collectively, they provide a fair bit of detail about the suspect’s activity.  Certainly more than any reasonable person would expect.  Hence the seemingly inevitable conclusion this violates a person’s “reasonable expectation of privacy” assured by the 4th Amendment.

While it’s certain these issues will continue to be battled out in the courts, the larger issue is that the existing laws governing legal surveillance were all written when this sort of capability was all science fiction.  They are woefully inadequate to address modern technology.  Judges are stretching the antiquated legislation to the breaking point trying to get it to fit around the world we live in. Which suggests the problem isn’t with the judiciary, but with the legislature.

It’s easy to lash out against so-called activist judges who are apparently legislating from the bench.  However, the situations exist, and it is the responsibility of the judges to make the best rulings they can.  The shortcoming is on the legislative side where these issues are not clarified and settled through new laws reflecting the constantly evolving technology available to citizens and law enforcement alike.