The thing is, the powers that different parties have are all based on a delicate system of checks and balances. Allowing the police to more efficiently pursue people is not necessarily desirable, and in fact many laws and Constitutional amendments (such as the whole idea of a warrant) are explicitly intended to clamp down on police efficiency. It would be much more efficient if the justice system didn't have to worry about guilt or individual rights at all, but that is obviously undesirable.
Previously, their ability to monitor people was limited by physical resources. This technology largely eliminates that constraint and allows them to conduct surveillance in cases where they never would have felt it was worth their time before. For roughly the same amount of work that tailing a suspect traditionally would have required, they can now track everybody he's come in contact with.
So the question is, did we really mean for police to have unlimited surveillance powers, or was it simply never considered before because natural limits always existed? I would argue the latter.
This is similar to how the Second Amendment cannot reasonably be read as allowing individuals to own thermonuclear warheads. That is obviously outside its intended scope, even though a literal reading of "right to bear arms" would appear to allow it.
Should the police have "unlimited surveillance powers"? Of course not.
Should the police be allowed to employ technologies that allow them to monitor every car on the road?
My answer to that is no, but we're technologists, and, be honest: 15 years from now that information is going to be available to the police by default, no matter what we do. But no: I have a problem with the notion of law enforcement dragnetting every single vehicle on the road. It's a power that has been abused with things like roadside sobriety checkpoints, which inevitably turn into revenue-raising boondoggles that inconvenience law-abiding motorists.
Should the police be allowed to employ technologies that allow them to designate specific vehicles in the course of actual investigations and monitor them using telemetry instead of manual patrols?
I say yes. For the same reason I said before: the telemetry is actually less intrusive than the power they already have, and the benefits are common sense: overtaxed investigative agencies can cover more ground more easily, fewer cars are on the road pointlessly following people, &c.
Assume a GPS is already installed on every car and in every cell phone - this will be the case in about, oh say, right now.
"allow them to designate specific vehicles in the course of actual investigations"
What process do you think they should use to designate a vehicle and access the records? I would think passing the request by a judge and swearing to him that they think there is a reason to track this car is a good way to do it.
Again: I do not think the police should have warrantless access to telemetry devices owned by the motorist.
I do not care what process is used to determine what cars an actual police officer will walk up to and attach a device to, just like I do not care what process is used to determine which cars an actual police officer will tail in an unmarked car. I care that some process exists, but I don't think it needs to be court ordered.
I think you should consider carefully whether mechanically involving the courts in decisions about collecting information in plain sight of police officers is in your best interests. Search warrants are already often a formality granted in the overwhelming majority of requests. A good way to help condition the court system to say "yes" to every request is to flood them with requests that in virtually every single instance will be be reasonable.
I can appreciate your position that if cops have to flood the courts, eyes will glaze over and careful consideration will go out the window.
But what use is an unclogged judicial review process to protect our fourth amendment rights if the police already have a green light to conduct unlimited surveillance?
More specifically: what good is judicial oversight when selective reporting of telemetry data can and will inevitably show you crossing paths with persons and locations noted for criminal activity?
Do you really expect the court is going to be familiar with sets of coordinates and realize that they are mere stops at intersections along your commute to work? Or popular shops and restaurants? Will they have any clue that the one time you were at the intersection marked in the warrant filing, that it was because there was an accident along your normal commute and you detoured a couple blocks?
24x7 telemetry data is effectively automatic-probable-cause. Cherry-picking that data is the digital equivalent to two cops playing the "Hey, Bob, do you smell marijuana?" game.
You will have crossed paths with criminals. You will have stopped, shopped, worked, ate or drank in proximity to criminals. You will have associated with people who could be argued to be intermediaries for criminals.
Give me a month's worth of 24x7 telemetry data and I'll give you an arguable criminal narrative.
The police do not need probable cause to surveil a vehicle driving on public streets.
If they did, I would understand the argument that warrantless telemetry was scary. They'd be using technology to bypass a check/balance that already exists. But they don't. The police can follow you for no reason. They can follow you because they don't like the look of your haircut.
I do not think the police should have 24x7 access to telemetry from all vehicles. I think the process needs to start with, "Subject K of this investigation is known to drive this late motel Honda Civic, and we are now commencing GPS surveillance".
I do worry about the consequences of LEOs cherry-picking from a constant stream of everyone's telemetry data, so that for instance you might get harassed if you lived in nice neighborhood X and drove into bad neighborhood Y for a few minutes, and, whoops, now there's probable cause that you just went and bought drugs. That kind of stuff? Bad! A good reason why we shouldn't be OK with them getting all the OnStar data or whatnot.
But that's simply not what we're talking about here. As long as an LEO has to walk up to a car deliberately and attach a device (which again let's be honest probably costs way too much for them to throw away), I am fine with it.
> "The police do not need probable cause to surveil a vehicle driving on public streets."
What I meant was: having telemetry data makes it trivial for the police to concoct a story that would sail through any judicial review for a warrant. They're already notorious for pulling people over for such sins as Driving-While-Black. Telemetry data would make it very easy for them extend that harassment with search warrants. Not to mention the knowledge that the police can get such a warrant on a whim (and toss your house upside down, impounding your electronics) would be absolutely devastating to the liberty of anyone they feel like harassing.
> "As long as an LEO has to walk up to a car deliberately and attach a device (which again let's be honest probably costs way too much for them to throw away), I am fine with it."
Cost is perhaps the least convincing argument against strict limits and judicial oversight on this behavior. The surveillance state has a clear and unwavering history of constant expansion in legislative authority, budget and implemented scope. And that's more than ably abetted by the constant downward pressure on technological product costs.
Your argument strikes me like saying that the TSA's scope was reasonable on day 1, and we needn't worry about strict limits on its inevitable expansion in invasive-ness and locations 'secured', simply because it would cost too much to expand.
Relying on the price of security state enforcement to protect our liberties is nothing short of shockingly naive.
My point is that all cars and cell phones already have GPS trackers installed. Since there is no need to place a device on a car or person to track them, the police just have to access the already existing records. If it is OK to place a device on a car without a warrant, wouldn't be OK to access tracking records without a warrant?
I agree with tptacek on this one: Even if they have the same effect, they're fundamentally different things. The difference is that by placing a tracker, you really are just tailing them with an electronic device of your own. But co-opting their phone or forcing a company to divulge records without a court order is essentially a violation of their property rights and protection from unreasonable searches.
I agree they should be able to designate specific vehicles and monitor them using telemetry, but I would call this process of designating "getting a warrant." Otherwise, I don't see what prevents them from, say, designating everybody the suspect knows. To me, it seems almost inevitable that this will go the way of sobriety checkpoints if there isn't any force holding them back.
Previously, their ability to monitor people was limited by physical resources. This technology largely eliminates that constraint and allows them to conduct surveillance in cases where they never would have felt it was worth their time before. For roughly the same amount of work that tailing a suspect traditionally would have required, they can now track everybody he's come in contact with.
So the question is, did we really mean for police to have unlimited surveillance powers, or was it simply never considered before because natural limits always existed? I would argue the latter.
This is similar to how the Second Amendment cannot reasonably be read as allowing individuals to own thermonuclear warheads. That is obviously outside its intended scope, even though a literal reading of "right to bear arms" would appear to allow it.