By Margaret Hu, a visiting assistant professor at Duke Law School. Her research focuses on immigration and surveillance policy. She previously served as special policy counsel on immigration-related discrimination in the Civil Rights Division of the U.S. Department of Justice.
When it comes to surveillance, size matters. In U.S. v. Jones, the GPS tracking case, the Supreme Court just might agree.On November 8, the Court heard arguments on whether the police violated the Fourth Amendment’s prohibition against unreasonable searches and seizures when it continued to monitor Mr. Jones’ car with a GPS device after the warrant expired. During oral argument, what seemed clear to the Justices is that cyber-surveillance today is not your grandma’s apple pie surveillance. With new technologies, the Justices seem to be wondering whether being watched 24/7 may one day be as common as, well, apple pie.
Back in the day, surveillance meant being tailed. The government sent someone to follow you around. Today, technology has given the government the capacity to track both your body and biography 24/7. And it’s not just “persons of interest” anymore. With cyber-surveillance, it’s now cost-effective to track everyone. But, is it ok for the government to check your email, google searches, and Facebook page? Skim your credit card records and purchases on Amazon? Monitor your cell phone records and smartphone locations? During U.S. v. Jones, the Supreme Court wondered aloud during oral argument whether the government could attach GPS devices to the license plates of everyone who owns a car in the entire U.S.
This last scenario might not be as far-fetched as it sounds.