With the Pentagon seeking to mine through every American's credit card purchases and the government using satellites to track our movements, it is reasonable to ask whether privacy is dead in the modern era.
The answer is "maybe." Two years ago, the nation's high court took a step toward recognizing the threat to privacy from advanced technology, but it didn't go far enough.
In June 2001, the U.S. Supreme Court reviewed a case involving the warrantless use of a thermal imaging device. The device indicated that excessive heat was emanating from a home, suggesting an indoor marijuana growing operation. Later, armed with a warrant, agents found what they suspected.
But in a 5-4 ruling, the U.S. Supreme Court rejected the unrestricted use of this technology, ruling that the use of high-tech equipment as a substitute for physical intrusion still qualifies as a search.
Antonin Scalia - typically the court's most vociferous friend of police - wrote for the majority: "Where, as here, the government uses a device that is not in general public use, to explore details of the home that would previously have been unknowable without physical intrusion the surveillance is a "search' and is presumptively unreasonable without a warrant."
It was the first flicker of recognition from the Rehnquist court that modern technology is overtaking and threatening to undo vital parts of the Bill of Rights - a concern of even greater resonance since the Sept. 11 attacks. Now, with terrorism knocking and the Bush administration unleashing new information-gathering technologies hungry for data on everything about all of us, it is clear that the court's classic interpretation of what constitutes an unreasonable search just won't cut it.
Currently, the government can be kept from nosing into our business if there is a "reasonable expectation of privacy." For example, we are presumed to have privacy in our homes, which means police must obtain a warrant before entering. But when we walk down the street, we are presenting ourselves to the public and police may observe us freely, no warrant required.
But what if government does more than just observe at a street corner with a cop on a beat? What if the government puts video cameras there to record cars and passers-by; and the cameras are connected to facial, gait and license plate recognition software programs? And what if the information is collected in a massive database and combined with data from other street corners and public building security cameras giving the government the capacity to track each of us whenever we leave our homes?
The government would say: Tough luck, no one has a reasonable expectation of privacy in what they do in public. But should electronic systems deployed by law enforcement really be free to trail us without cause or judicial oversight? Right now, a case is pending before Washington state's Supreme Court asking whether police may attach a global positioning system or GPS tracking device to the exterior of a car without a warrant. The lower appellate court had approved the device.
Okay, maybe when following someone took three shifts of police, the lack of a warrant did not seriously endanger civil liberties. The extraordinary outlay of resources kept it from happening to too many people. But here, three shifts of police are traded in for a $100 GPS device. These economies will soon give police the option of attaching GPS devices to every resident's car so they can tell which cars are in the vicinity of future burglaries - a chilling specter but a possible one if the courts give the go-ahead.
Should the decreasing cost of surveillance tools mean the courts can be shut out of their traditional role of constraining law enforcement from spying on Americans who are not suspected of doing anything wrong?
Then there is the recently renamed Terrorism Information Awareness program at the Pentagon. A report to Congress last week confirmed that the Defense Department intends to develop a data-mining tool to cull through huge databases of personal information in order to try to detect suspicious patterns. How, you might ask, can the government collect the commercial databases of banks, travel agents, telephone companies, credit card companies and the rest without a warrant? Because in the 1970s the U.S. Supreme Court said we don't have a reasonable expectation of privacy in records held by a third party. Again, this did not pose such a problem when few records were kept and those that were were created by hand and hard to centralize, but today virtually every transaction results in an electronic record that can be made easily accessible.
Now if you ask most Americans whether the Constitution protects them from having government watch where they go online or whom they write checks to or details of their book purchases, most would think so. But the Supreme Court says not.
Could this be any more counterintuitive or damaging to concepts of limited government? The high court needs to blow the dust off its jurisprudence and come into the 21st century. Whether we are traveling in public or transacting business in a bank the Bill of Rights should provide a shield from government detailing our actions. It is a reasonable expectation, no matter what the court says.