No Place To Hide: First Amendment Protection For Location Privacy

The privacy of a person's location has a practical component, as population pushes back wilderness and electronic sensors capture people's activities. Location privacy also includes a legal component, as law enforcement agencies press the courts for more rights to monitor citizens and more access into American private lives. So if a person is concerned about the privacy of his location, two important and intertwined questions must be addressed: 1) CAN a person act anonymously given the nature of surveillance technology improvements, and 2) does a person have a RIGHT to act anonymously under the laws of the land. As technology to constantly capture our location improves, then the answer to the legal question becomes more important, because if we postpone answering the question long enough, then technology will overrun any opportunity to establish a meaningful location privacy right. The technology will answer all relevant questions before the legislatures or courts can consider them.

Many of the most interesting constitutional problems faced by courts today arise because technology and society have evolved in ways that the founders could never have considered, and that we could not expect them to have addressed. The need to assert the privacy of one's location would have been unfathomable to even the farthest thinkers of the eighteenth century, but the ability to act or even exist outside the watchful eye of government is rapidly disappearing in the full-time surveillance society of the United States in the twenty-first century.

When the American founding fathers were drafting and voting on the Constitution of the United States, the world's first hot air balloon flight took place in France, lifting a duck and sheep and a rooster off of the ground for a full 15 minutes, and within two years, Jean Pierre Blanchard, and American John Jefferies rode a hot air balloon across the English Channel. During this time when the full extent of land and sea on the earth was still unknown, and when the United States consisted of territories locked to the Atlantic seaboard abutting a vast unexplored wilderness, it was inconceivable that anyone, government or otherwise, would be able to know the location of specific individuals if those individuals wished to remain hidden. It would be nearly a full century following passage of the United States Constitution before practical electric light would be invented and another decade beyond that before power generation would reach major American cities, beginning the process of lighting the night sky. In the founder's time, people could disappear into the night, not only in the wilderness but also in the greatest cities, with no thought of being identified or watched by the government. The manpower required to continuously track and monitor a freely moving person is prohibitively expensive without technological help, and every person in Colonial America knew that he or she could disappear from sight with minimal effort, and only gossip and rumor could trace his or her location.

Our founding fathers lived in a time when entire armies and fleets could vanish overnight. Many historians believe that General Washington's finest military operation was his undetected withdrawal of the American army and all of its supplies across the East River to Manhattan after defeat in Brooklyn Heights in the summer of 1776. The entire Continental Army disappeared from its camp on Long Island and appeared the next day without notice of a watchful enemy. Ships, once at sea, may never be seen again. Many ships in Colonial times, like the HMS Heureux, the USS Insurgent and the USS Saratoga vanished once they left the safety of port. For example, the USS Pickering left Newcastle, Delaware on August 20, 1800 and never arrived at her destination of Guadeloupe; she is thought to be lost in a storm with all hands. No one knows for certain where she disappeared or what might have happened to her. This was not a world where privacy of location could be questioned. Anyone who chose to act privately or anonymously need only slip into the dark night. How could the U.S. founding fathers, living in such a world of mystery and anonymity, ever conceive that a government would track its citizens from satellites orbiting earth, triangulated airborne cellular signals or multiple coordinated computerized cameras? Why would they have thought to protect personal dignity and security from inconceivable technological advancement?

Today's world brings an entirely different circumstance to those wishing privacy or anonymity. The United States is considerably more crowded, with eighty one percent of Americans living in cities. In addition, unlike the world of our founders, today's United States is mapped and known. Every point where you could walk or climb in this nation is charted and assigned with a latitude and longitude, which global positions are then understood in the context of the nearest landmarks, roads, cities, shorelines or government installations. Current technology has also changed privacy calculations. Since 1996, when President Clinton declared the Global Positioning System to be a duel-use system to be shared between military and civilian purposes, the world has become a smaller place. As the internet allowed mass customization of advertising, GPS applications have created mass-customization of location identification. We drive GPS-enabled cars and carry GPS-enabled phones and other tools. We tag our pets with location devices and strap GPS beacons to our children. Our products have RFID tags that can follow us home from the store, broadcasting location and other information.

When we add this GPS explosion to the current proliferation of stationary cameras - video captured at intersections, at ATMs and at businesses - we are caught in a society with all the tools to surveil everyone all the time. And each day brings total surveillance closer. First, the trend toward more monitoring and more subtle monitoring is increasing exponentially as the technology becomes cheaper and easier to use. For example, the owner of a new fast food restaurant can add nine cameras monitored over the internet for pennies per day. Adding location-aware applications and software can cost us nothing at the online App Store, and can be added and accessed from anywhere. Second, the digitization of pictures, the plummeting cost of computer storage, and the ability to run interpretive software on the video in real time makes surveillance cameras more useful and cost effective. Cameras following traffic or monitoring security are adding computer analysis of every frame. Biometric programs measuring a person's gate or...