{"id":780,"date":"2011-04-22T09:34:30","date_gmt":"2011-04-22T13:34:30","guid":{"rendered":"http:\/\/www3.law.harvard.edu\/journals\/hlpr\/?p=780"},"modified":"2015-10-02T15:57:41","modified_gmt":"2015-10-02T15:57:41","slug":"the-fourth-amendment-and-income-inequality","status":"publish","type":"post","link":"https:\/\/journals.law.harvard.edu\/lpr\/2011\/04\/22\/the-fourth-amendment-and-income-inequality\/","title":{"rendered":"The Fourth Amendment and Income Inequality"},"content":{"rendered":"

Yevgeny Shrago<\/em><\/p>\n

Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals visited Harvard Law School yesterday to discuss his recent blistering\u00a0dissent<\/a>\u00a0in a Fourth Amendment case. \u00a0In\u00a0United States v. Pineda-Moreno<\/a>,\u00a0<\/em>the Ninth Circuit weighed in on the\u00a0growing<\/a>\u00a0jurisprudence<\/a>\u00a0surrounding<\/a>\u00a0police officers placement of a GPS tracker on a suspect\u2019s car without a warrant. The three judge panel hearing the case held that this did not violate Pineda-Moreno\u2019s Fourth Amendment rights because he had no reasonable expectation of privacy for the underside of a car parked in his driveway. Judge Diarmuid O\u2019Scannlain reasoned in his unanimous opinion that if a neighborhood child could place the tracker, so could the cops.<\/p>\n

Chief Judge Kozinski vehemently disagreed with the panel\u2019s \u201cwayward child\u201d standard, pointing out that such a rule gives one expectation of privacy for those wealthy enough to afford enclosed garage parking and another for those reduced to parking on the street. Chief Judge Kozinski accused the panel (and implicitly the entire judiciary) of \u201cunselfconscious cultural elitism\u201d for failing to understand the divergent situation. Although Kozinski\u2019s attack on his fellow judges\u2019 reasoning provided a powerful counterpoint, HLS Professors Jeannie Souk and Charles Fried suggested a different tack for understanding the decision: letting the police be more effective at doing the jobs they have a constitutional right to do anyway.
\n<\/span><\/p>\n


\nIn the discussion, Chief Judge Kozinski provided an expanded view that not only GPS tracking, but also the ability to pull a suspect\u2019s location off his\u00a0cell phone signal<\/a>\u00a0with the provider\u2019s permission, was \u201ccreepy and un-American.\u201d He pointed out that with this sort of information, the police could learn personal details about anyone without needing a shred of probable cause. In particular, cell phone signals could be used to pinpoint a person\u2019s location to determine that they were, for example, having an affair.<\/p>\n

Professor Suk, with an assist from Professor Fried, raised a pointed objection. Officers can tail a suspect without a warrant, conducting surveillance that gives them the same intimate details. Before mobile telecommunications, though, the surveillance required stakeouts and teams of officers. Denied the ability to use GPS and cell phone towers, the police would have to spend significantly more resources to achieve the same result, while also risking that the suspect would give them the slip.<\/p>\n

For a libertarian like Chief Judge Kozinski, making government ineffective is a feature, not a bug. For progressives, the issue is more complicated. Even though Kozinski\u2019s dissent powerfully captures how the law discriminates in its level of protection for the rich and the poor, the discrimination in GPS and cell phone tracking capability is not the place to fight this battle. Fixing this problem by creating government inefficiency only exacerbates the inability of police departments to undertake community-based policing\u2014and takes money away from solutions that can help remedy the underlying income inequality issues. We would be better off using limited political and financial resources to focus on smoothing out the larger inequalities in the system than battling police departments to make them keep doing things the old-fashioned way.<\/p>\n","protected":false},"excerpt":{"rendered":"

Yevgeny Shrago Chief Judge Alex Kozinski of the Ninth Circuit Court of Appeals visited Harvard Law School yesterday to discuss […]<\/p>\n","protected":false},"author":2,"featured_media":0,"comment_status":"closed","ping_status":"closed","sticky":false,"template":"","format":"standard","meta":{"site-sidebar-layout":"default","site-content-layout":"","ast-site-content-layout":"default","site-content-style":"default","site-sidebar-style":"default","ast-global-header-display":"","ast-banner-title-visibility":"","ast-main-header-display":"","ast-hfb-above-header-display":"","ast-hfb-below-header-display":"","ast-hfb-mobile-header-display":"","site-post-title":"","ast-breadcrumbs-content":"","ast-featured-img":"","footer-sml-layout":"","ast-disable-related-posts":"","theme-transparent-header-meta":"","adv-header-id-meta":"","stick-header-meta":"","header-above-stick-meta":"","header-main-stick-meta":"","header-below-stick-meta":"","astra-migrate-meta-layouts":"default","ast-page-background-enabled":"default","ast-page-background-meta":{"desktop":{"background-color":"var(--ast-global-color-5)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"ast-content-background-meta":{"desktop":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"tablet":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""},"mobile":{"background-color":"var(--ast-global-color-4)","background-image":"","background-repeat":"repeat","background-position":"center center","background-size":"auto","background-attachment":"scroll","background-type":"","background-media":"","overlay-type":"","overlay-color":"","overlay-opacity":"","overlay-gradient":""}},"jetpack_post_was_ever_published":false,"_jetpack_newsletter_access":"","_jetpack_dont_email_post_to_subs":false,"_jetpack_newsletter_tier_id":0,"_jetpack_memberships_contains_paywalled_content":false,"_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[2],"tags":[],"class_list":["post-780","post","type-post","status-publish","format-standard","hentry","category-blog"],"jetpack_featured_media_url":"","jetpack_sharing_enabled":true,"jetpack_shortlink":"https:\/\/wp.me\/peZQka-cA","_links":{"self":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/780","targetHints":{"allow":["GET"]}}],"collection":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts"}],"about":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/types\/post"}],"author":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/users\/2"}],"replies":[{"embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/comments?post=780"}],"version-history":[{"count":0,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/posts\/780\/revisions"}],"wp:attachment":[{"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/media?parent=780"}],"wp:term":[{"taxonomy":"category","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/categories?post=780"},{"taxonomy":"post_tag","embeddable":true,"href":"https:\/\/journals.law.harvard.edu\/lpr\/wp-json\/wp\/v2\/tags?post=780"}],"curies":[{"name":"wp","href":"https:\/\/api.w.org\/{rel}","templated":true}]}}