Government agents can sneak onto your property in the middle of the
night, put a GPS device on the bottom of your car and keep track of
everywhere you go. This doesn't violate your Fourth Amendment rights,
because you do not have any reasonable expectation of privacy in your
own driveway - and no reasonable expectation that the government isn't
tracking your movements.
That is the bizarre - and scary - rule that now applies in California
and eight other Western states. The U.S. Court of Appeals for the Ninth
Circuit, which covers this vast jurisdiction, recently decided the
government can monitor you in this way virtually anytime it wants - with
no need for a search warrant.
It is a dangerous decision - one that, as the dissenting judges
warned, could turn America into the sort of totalitarian state imagined
by George Orwell. It is particularly offensive because the judges added
insult to injury with some shocking class bias: the little personal
privacy that still exists, the court suggested, should belong mainly to
This case began in 2007, when Drug Enforcement Administration (DEA)
agents decided to monitor Juan Pineda-Moreno, an Oregon resident who
they suspected was growing marijuana. They snuck onto his property in
the middle of the night and found his Jeep in his driveway, a few feet
from his trailer home. Then they attached a GPS tracking device to the
After Pineda-Moreno challenged the DEA's actions, a three-judge panel
of the Ninth Circuit ruled in January that it was all perfectly legal.
More disturbingly, a larger group of judges on the circuit, who were
subsequently asked to reconsider the ruling, decided this month to let
it stand. (Pineda-Moreno has pleaded guilty conditionally to conspiracy
to manufacture marijuana and manufacturing marijuana while appealing the
denial of his motion to suppress evidence obtained with the help of
In fact, the government violated Pineda-Moreno's privacy rights in
two different ways. For starters, the invasion of his driveway was
wrong. The courts have long held that people have a reasonable
expectation of privacy in their homes and in the "curtilage," a fancy
legal term for the area around the home. The government's intrusion on
property just a few feet away was clearly in this zone of privacy.
The judges veered into offensiveness when they explained why
Pineda-Moreno's driveway was not private. It was open to strangers, they
said, such as delivery people and neighborhood children, who could
wander across it uninvited.
Chief Judge Alex Kozinski, who dissented from this month's decision
refusing to reconsider the case, pointed out whose homes are not open to
strangers: rich people's. The court's ruling, he said, means that
people who protect their homes with electric gates, fences and security
booths have a large protected zone of privacy around their homes. People
who cannot afford such barriers have to put up with the government
sneaking around at night.
Judge Kozinski is a leading conservative, appointed by President
Ronald Reagan, but in his dissent he came across as a raging liberal.
"There's been much talk about diversity on the bench, but there's one
kind of diversity that doesn't exist," he wrote. "No truly poor people
are appointed as federal judges, or as state judges for that matter."
The judges in the majority, he charged, were guilty of "cultural
The court went on to make a second terrible decision about privacy:
that once a GPS device has been planted, the government is free to use
it to track people without getting a warrant. There is a major battle
under way in the federal and state courts over this issue, and the
stakes are high. After all, if government agents can track people with
secretly planted GPS devices virtually anytime they want, without having
to go to a court for a warrant, we are one step closer to a classic
police state - with technology taking on the role of the KGB or the East
Fortunately, other courts are coming to a different conclusion from
the Ninth Circuit's - including the influential U.S. Court of Appeals
for the District of Columbia Circuit. That court ruled, also this month,
that tracking for an extended period of time with GPS is an invasion of
privacy that requires a warrant. The issue is likely to end up in the
In these highly partisan times, GPS monitoring is a subject that has
both conservatives and liberals worried. The U.S. Court of Appeals for
the D.C. Circuit's pro-privacy ruling was unanimous - decided by judges
appointed by Presidents Ronald Reagan, George W. Bush and Bill Clinton.
Plenty of liberals have objected to this kind of spying, but it is
the conservative Chief Judge Kozinski who has done so most passionately.
"1984 may have come a bit later than predicted, but it's here at last,"
he lamented in his dissent. And invoking Orwell's totalitarian dystopia
where privacy is essentially nonexistent, he warned: "Some day, soon,
we may wake up and find we're living in Oceania."
Cohen, a lawyer, is a former TIME writer and a former member of the New York Times editorial board.