Post by Sherry Colb
In my column for this week, I write about the Supreme Court's upcoming case, United States v. Jones, in which it will decide whether attaching a GPS device to a car and thereby monitoring the car's whereabouts for an extended period of time constitutes a "search" for purposes of the Fourth Amendment, requiring a warrant based on probable cause. Because I have written about the GPS tracking issue before, my column discusses the nearly-indistinguishable invasion of having police track the location of people's cell phones, an intrusion that may fall outside the definition of Fourth Amendment "search" no matter how the Court decides Jones.
In this post, I want to address a different issue that is, at least implicitly, raised by police tracking of people's movements: Is there an invasion of privacy if the target never finds out about it? This question arises because the sorts of surveillance involved with a GPS often occur without the targets being any the wiser. Unlike being followed by a police car -- an experience that is not governed by the Fourth Amendment, by the way -- being monitored by GPS is not going to "feel" different to the person monitored than not being monitored would feel.
From a legal perspective, the answer to my question is almost certainly yes. Whether the police have invaded a person's privacy has never turned on whether the target in question knew about the search. It is true, of course, that people who have successfully challenged the legality of a search did learn about the search at some point and were only thereby able to bring a suppression motion or a lawsuit. Interestingly, in when the ACLU and others challenged clandestine NSA surveillance programs, the case was dismissed for lack of standing because the people challenging the program could not prove that they had been targets of surveillance. Though their lack of knowledge was fatal to their claim, the ruling did not truly stand for the proposition that a lack of knowledge vitiates an otherwise unconstitutional invasion of privacy. In a Catch-22 of sorts, the plaintiffs' ignorance of who was being monitored (a component of their objection to the surveillance) ended the lawsuit by making it impossible for them to prove they had a personal stake in the case. Knowledge that one's privacy is invaded, in other words, is not substantively necessary but is procedurally required for a successful cause of action against the surveillance.
Though I believe the Supreme Court would say that knowledge is not necessary to experiencing a Fourth Amendment harm, the question is nonetheless a vexing one. If you are being watched, your emails read, and your phone calls recorded, but you never even suspect any of it, in what sense are you truly harmed? One easy response is that people who watch and listen to your private moments can now abuse what they learn. They can blackmail you or expose you to public ridicule, or they can steal your identity and get you into trouble. This is all admittedly true, but what if they do not do any of that? What if they simply watch, listen, and absorb your private information but do nothing that will concretely alter your life in any other way? And what if you never learn of their spying?
The 1993 movie Sliver (and presumably the book as well, though I have not read it), starring Sharon Stone and William Baldwin, considers these issues. A landlord has wired an entire apartment building so he can watch everything that goes on in the apartments. The tenants, however, do not know about the surveillance. There's more to it (a romance, murders, etc.), but one of the questions posed by the movie is whether the landlord's monitoring alone -- assuming he does nothing harmful with the information -- invades the privacy of the monitored people. If you do not in any way suffer from the invasion of your privacy, then perhaps you have not really suffered an invasion of privacy at all.
Eventually, as it turns out, at least one person (the character played by Sharon Stone) learns of the invasion of her privacy, and when she does, she unequivocally experiences a privacy harm because of it. And maybe this helps provide an answer to my question. If the government can spy on people without any basis (and without people having the power to find out whether they are the targets of surveillance), then two things will occur: first, there will inevitably be those people -- like Stone's character -- who find out about the surveillance, and they will suffer privacy harms; second, large numbers of people will learn that such spying happens, and many (including more than just the people subject to it) will suspect that they are being watched. Ironically, then, where there is not adequate protection for privacy, the harms that accompany invasions of privacy -- self-consciousness, anxiety, a chilling of spontaneity and free expression -- may well come to pass for people who have not in fact been monitored at all. When monitoring is both pervasive and clandestine, everyone eventually becomes a victim of unreasonable searches. Whether you are truly harmed by an unknown invasion of your privacy may thus prove to be purely an academic question.