Big Government run amok: Obama Administration says citizens have no 'reasonable expectation' the government won't track them everywhere they go

Despite the US Supreme Court's ruling in US v. Jones that such an activity constituted a Fourth Amendment search, the Obama Administration continues to maintain that it may install a GPS tracker on personal vehicles without a warrant or demonstrating probable cause. (From Wired see: "Feds: No warrant needed to tack your car with GPS device." The government's latest brief (pdf) on subject to the Third Circuit Court of Appeals says they should be able to use such trackers to develop probable cause, a notion that turns the Fourth Amendment on its head.

If the court doesn't buy that argument, the feds maintain judges should apply the automobile exception to the Fourth Amendment that allows a lower standard to search a vehicle at a traffic stop than a person's home. The automobile exception, though, was created to let police look for contraband. It's quite another thing entirely to say it justifies continuous tracking over time.

Incidentally, Mr. Jones, of US v. Jones fame, saw his case result in a deadlocked jury earlier this month. The government, after being told it couldn't use information from the GPS tracking device in his car, used tracking data from his cell-phone instead to generate the same location information. So it wasn't the lack of location data that soured the case but the state's failure to provide other, sufficient proof of his guilt. Still, the episode shows the relationship between cell-phone tracking and US v. Jones - if that loophole isn't closed, Jones becomes essentially useless for protecting personal privacy in an era where nearly every adult has a cell phone.

These federal cases demonstrate why Rep. Bryan Hughes HB 1608 has received so much support in the Texas House, along with bipartisan support for a warrant requirement for cell-phone location data in the Senate. Opponents of the measure have been arguing of late that your personal location information does not belong to you, that you've given up any "reasonable expectation of privacy" regarding your location simply by carrying a cell phone. This is the "third-party" exception - an ill-advised, SCOTUS-written carve-out of the Fourth Amendment that Justice Sonia Sotomayor argued should be reconsidered in her concurrence to Jones in an era when so much data about us is now held by private companies. Sotomayor argued that to allow continuous, warrantless tracking by the government would "alter the relationship between citizen and government in a way that is inimical to democratic society." She's right.

Nine Justices in Jones said putting a location tracker on your car is a search, and a majority of justices held it was a search not just because of the physical intrusion of placing a tracker on your car but because continuous tracking of one's movements violated reasonable expectations of privacy. Judges, though, aren't the only ones who take an oath to uphold the Constitution. Legislators, too, bear that obligation and when judges or the executive branch fail to act, it's incumbent on legislatures to step in to protect constitutional rights. The Texas Legislature has a chance this session to exercise leadership on this question, rebuffing the Obama Administration's absurd, self serving contention that we have no "reasonable expectation" the government won't track us everywhere we go.