NCPA - National Center for Policy Analysis

The Government Can Use GPS To Track Your Moves

August 31, 2010

Government agents can sneak onto your property in the middle of the night, put a Global Positioning System (GPS) device on the bottom of your car and keep track of everywhere you go.  This does not violate your Fourth Amendment rights, because you do not have any reasonable expectation of privacy in your own driveway -- and no reasonable expectation that the government is not tracking your movements.  That is the rule that now applies in California and eight other Western states.   

The U.S. Court of Appeals for the Ninth Circuit, which covers this vast jurisdiction, recently decided the government can monitor you in this way virtually any time it wants -- with no need for a search warrant, says Adam Cohen, a former member of the New York Times editorial board: 

  • Drug Enforcement Administration (DEA) agents decided to monitor Juan Pineda-Moreno, an Oregon resident who they suspected was growing marijuana.
  • They sneaked onto his property in the middle of the night and found his Jeep in his driveway, a few feet from his trailer home.
  • Then they attached a GPS tracking device to the vehicle's underside. 

The invasion of his driveway was wrong.  The courts have long held that people have a reasonable expectation of privacy in their homes and in the "curtilage," a fancy legal term for the area around the home.  The government's intrusion on property just a few feet away was clearly in this zone of privacy, says Cohen: 

  • The judges veered into offensiveness when they explained why Pineda-Moreno's driveway was not private.
  • It was open to strangers, they said, such as delivery people and neighborhood children, who could wander across it uninvited.  

Chief Judge Alex Kozinski, who dissented from this month's decision refusing to reconsider the case, pointed out whose homes are not open to strangers: rich people's.  The court's ruling, he said, means that people who protect their homes with electric gates, fences and security booths have a large protected zone of privacy around their homes.  People who cannot afford such barriers have to put up with the government sneaking around at night, says Cohen. 

Source: Adam Cohen, "The Government Can Use GPS to Track Your Moves," TIME Magazine, August 25, 2010. 

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