If you’re a college student and you lived with your parents for the summer, you’re probably intimately familiar with the concept of privacy. Whether your mother joined Facebook to troll through your photos, or she dropped off some laundry in your room and uncovered your stash of (shall we say) Girl Scout cookies, you have a sense of both the unfettered freedom of dorm life, and the somewhat more complicated judicial process of home. For example, upon finding compromising photos, what course of action is she allowed to take? Must she appeal to your father before grounding you? Or are they by simple right of point and shoot, your’s to post and distribute as you like? The answer to this question is usually complicated by a list of factors, the least of which includes the mood of the mother in question.

Although our justice system employs a slightly more consistent and potentially more organized process, many of the same questions get raised and what constitutes a search is continually evolving to address new technological and social frontiers. It’s the Courts’ challenge to reconcile Constitutional language with the modern world in all of its tweeted glory. As we willingly (nay, gleefully) post tidbits, snippets and the occasional complete sentence to Facebook, we shed privacy in favor of notoriety perceived or otherwise. Facebook has just added a locator application that allows users and their “friends” to post information about their locations online. After 24 hours, I changed my privacy settings. Too far is too far.

In that vein, The DC Circuit Court of Appeals has just changed everyone’s privacy settings. On August 6, the Court held that the long-term use of a Global Positioning System device to track the location of a car on public road qualifies as a search under the terms of the Fourth Amendment.

Not flashy, but significant. For those of you who don’t carry a pocket sized copy of the Constitution or haven’t met the business end of a search warrant, the Fourth Amendment requires the government to have “probable cause” before they can search your person, house, papers, or effects. The courts are left with the interpretive duty of both consulting to determine what constitutes probably cause, and throwing out evidence they believe was obtained without it.

According to court documents, in a bid to nail Antoine Jones, a part time nightclub owner and allegedly full time drug dealer, the Federal Bureau of Investigation planted a GPS device on a car while it was on private property, and then used the system to track the position of the automobile every ten seconds for a month. While it’s likely they were acting on more than a whim, the FBI never got a warrant to do so. A whole platoon of lawyers was called into the fray.

Having climbed the ladder of appeals, the case reached the DC Circuit, which ruled that the information obtained from the device be thrown out because the act constituted a search without cause. The ruling is potentially revolutionary because it introduces a new interpretive theory of the Fourth Amendment. It essentially allows individual law enforcement practices, which are not in themselves searches, to collectively amount to a search.

Libertarians, “Nineteen Eighty-four” fans and potential criminals alike are rejoicing and their rationale is compelling. For one, systematic use of GPS tracking opens the door for the government to continuously track anyone’s location without ever having to prove the surveillance is justified. But in law, like in parental disputes, we look to precedent (sibling or otherwise). In the 1983 Supreme Court case US v. Knotts, the court held that “a person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”  By traveling on public streets, the court decided, a person is voluntarily conveying his or her location. 

While the premise is shoddy (would I still be willing to “convey my location” if I knew it was being monitored?), the legal argument is solid. In fact in the last 10 years, three other Federal courts have allowed this kind of GPS monitoring, so the DC Court ruling is a significant break from tradition.

It likely means another appeal and more hearings about what privacy means. Each generation seems to grapple with a new Constitutional issue – the role of government, civil rights or the draft. For us, it’s privacy. Be it internet use (Google has pulled out of China rather than fork over search information), medical records and genetic tests (the federal health record privacy act, HIPAA, has serious loopholes), wiretapping potential terrorists, or gay marriage, we’re in for a lot of complicated questions. We face the indelible challenge of enjoying a small world after all, without losing our rights in the process.

And what are our rights? The Constitution does not explicitly guarantee a right to privacy. The Third Amendment says the government can’t force soldiers into our homes. The Fifth allows us protection against self-incrimination and the Fourth provides us protection against unreasonable searches, but a right to privacy isn’t inherent. Countless legal scholars and judges note that surely (surely!) the right to privacy lives in those amendments and in the American way of life. But it’s still complicated. For every inane status update, there is an anonymous blogger. For every drug dealer being tracked, there is a Facebook user posting hourly updates on their location. Are we as open and voyeuristic as our Facebook pages would suggest or as masked as our avatars and blog comments seem to indicate? Who are we? And do we care if Big Brother is watching? Or did we invite him over in the first place? Please send in your thoughts on privacy, search warrants, and Facebook.

Catherine Whelan is a Collegian columnist. She can be reached at [email protected].