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Craig Parshall, General Counsel

 

High Court Nixes “Eyes on You”

January 25, 2012

Privacy advocates were pleased with a unanimous decision from the Supreme Court on Monday regarding GPS surveillance of citizens. The Court ruled that when police placed a GPS monitoring device on a suspect’s car without a valid search warrant, it violated the Fourth Amendment’s guarantee that Americans be “secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.”

The majority opinion likened the GPS privacy invasion in that case to the common law offense of “trespass” at the time of the Founding. During oral argument, comments from the Justices were replete with references to Orwell’s novel, 1984. The bigger issue, very much undecided, is the legal status of GPS-type monitoring and other behavioral tracking imbedded in web applications and wireless devices by private tech companies, and the use to which they put that information. For instance, Microsoft has reportedly developed “activity based navigation” technology that can be imbedded in cell phones, tracking every physical movement of a person who carries it. Facebook is on the verge of a settlement with the U.S. Government over the way it has used private information of its users. The Wall Street Journal has done a study of common destinations on the Internet, and rated those sites in terms of privacy-invasive practices.

Online dictionaries, careerbuilder.com, MSN, Comcast, and Photobucket are all rated “high” in terms of the risk you face, given that they’re tracking your every click and building a profile of you. Among those rated “low” are Bing, Twitter, Apple, Facebook, YouTube, Google, and Wikipedia. However, the Fourth Amendment protections only apply to “state actors” (i.e. the government or its agents) – and not to the actions of private individuals or companies – so the Supreme Court’s ruling doesn’t answer the question about these wireless and online tracking situations.