“Big Brother is watching you” is no longer a fictional admonition.
Your location is recorded wherever you go — with phone technology, license plate readers, Uber transactions and cameras everywhere.
That puts evidence of your personal movements in the hands of tech companies you’ve probably never even heard of.
Can the police and other government agencies compel those companies to share that information?
That was the question before the US Supreme Court this week, in a case that could affect your privacy.
If the history of your area places you in a crime scene, for example, you may be a suspect, sweep a wide area to find the perpetrator.
Law enforcement is increasingly using this technology, called geofencing, to pursue potentially unsolved crimes.
During Monday’s oral arguments in Chatrie v. In the United States, justices grapple with the competing interests of privacy and fighting crime, and wrestle with how the US Constitution, written two centuries ago, can protect your rights in a very different era.
In 2019, a gunman robbed Call Federal Credit Union in Midlothian, Va.
Police, with no clues as to the thief’s identity, provided Google with a “geofence warrant” that produced historical records of the location of every digital device within a 17.5-acre radius around the bank at the time of the robbery.
The warrant led them to the man who was eventually charged, Okello Chatrie.
Now, Chatrie claims the investigators’ geofence warrant violated the Fourth Amendment’s protection against “unreasonable” government searches.
The case is facing an unusual bed, which includes the left-leaning American Civil Liberties Union and conservative groups such as the Institute for Justice and the Cato Institute.
They all argue that if a judge issues a warrant for law enforcement to search local records involving hundreds or thousands of people to narrow down the list of suspects, it is the modern version of something the framers of the Constitution intended to specifically prohibit.
During colonial times, 250 years ago, British customs officials could use a “general warrant” to raid every home in the city, looking for smuggled goods.
The Fourth Amendment was written to prevent general searches — and, according to Chatrie’s supporters, a geofence warrants much the same.
But that argument didn’t make much headway among the judges, who cited law enforcement’s comments about the usefulness of geofencing and appeared likely to uphold the bank robber’s conviction.
Instead, the justices focused on whether geofencing licensing standards should be tightened to prevent government abuse.
“What would prevent the government from using this to find out who everyone is in a certain church, a certain political organization?” Chief Justice John Roberts asked the lawyer.
For many Americans, who don’t bail out and are worried about running from the police, that’s the real story of this case.
This week a Justice Department task force criticized former FBI Director Christopher Wray and the Biden administration for falsely targeting Catholics who hold “traditional biblical views,” falsely claiming they are prone to violence.
New technology makes it easier for the corrupt FBI to identify who goes to which church.
And while Google no longer stores location data and says it won’t comply with future geo-verifications, many tech companies collect the kind of data in question.
Flock Safety, a license plate reading company, has cameras in more than 5,000 communities and provides reports to 4,800 law enforcement agencies in 49 states.
Here in New York, Staten Island District Attorney Michael McMahon said those cameras allow for quick arrests of car thieves and successful prosecutions in court.
But critics argue that the cameras’ widespread tracking of your whereabouts amounts to an invasion of privacy.
The ACLU wants “clear laws to prevent the government from tracking our movements on a large scale.”
As always in politics, there is an equal amount of hypocrisy.
Several Democratic-led cities in New York, Colorado, Illinois, Massachusetts and elsewhere terminated their contracts with Flock Safety because it cooperates with federal Immigration and Customs Enforcement.
Apparently they think it’s OK to arrest American born criminals using geo-search, but not illegal immigrants – ridiculous.
The Supreme Court won’t issue its decision until June, but Monday’s hearing made one thing clear: Wherever you go, consider creating a digital and photographic record of your activities and movements.
Privacy is a thing of the past.
And while this technology is an advantage in the fight against crime, in the wrong hands it can cost us all our freedom.
James Madison noted that “if angels ruled over us,” we would need no limits on government power.
But angels are missing.
Betsy McCaughey is the former governor of New York.
