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The U.S. Court of Appeals for the Ninth Circuit has ruled that representatives of government agencies may sneak onto your property, put GPS devices on your vehicles, and follow you around, without bothering to obtain a search warrant.
That astonishing, utterly un-American, Orwellian decision affects nine western U.S. states. The court’s decision upheld the conviction of an Oregon man for conspiracy to manufacture marijuana and manufacturing marijuana, from a 2007 case. Part of the evidence against him, which the court allowed to stand, was obtained when U.S. Drug Enforcement Agency operatives sneaked onto his property and attached a hidden GPS device to his car, which was parked in his driveway just a few feet from his trailer home.
That decision, which was given this month, affirmed a January ruling of a three-judge panel of the Ninth Circuit Court.
Interestingly, the decision has aristocratic overtones: the judges ruled that open property, such as an individual’s driveway, was not protected even though it is indeed personal property. Chief Judge Alex Kozinski, a Reagan appointee, noted that this decision benefits the rich, as a Time magazine commentary notes:
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.
The Time commentary by Adam Cohen includes a very revealing aside. Cohen writes:
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 elitism.”
According to Cohen, concern for individual privacy is a characteristic of liberals, not conservatives, and liberals are for the underdog while conservatives support elitism.
Cohen reinforces this by writing, “In these highly partisan times, GPS monitoring is a subject that has both conservatives and liberals worried,” and acting so surprised at Kozinski’s having so strongly articulated what Cohen sees as a liberal position: “Plenty of liberals have objected to this kind of spying, but it is the conservative Chief Judge Kozinski who has done so most passionately.”
This premise, that liberals are the protectors of people’s rights and conservatives are willing to let government act however it wishes, is entirely ludicrous, and obviously so. It is especially absurd in the current times when the national, state, and local governments controlled by those described as liberals are running roughshod over every individual right: speech, association (including commerce), public assembly, religion, bearing arms, protection against self-incrimination, and the lot.
So-called conservatives have been the loudest proclaimers of these rights in recent years, expressed most vividly at present by the Tea Party movement. For this they have been vilified by the old media and reigning political class. So-called liberals, by contrast, have been aggressive and relentless in their destruction of these rights through ever-increasing government intervention into every aspect of Americans’ lives. For this the old media have showered them with praise and protection.
For Cohen—a former Time magazine writer and a former member of the New York Times editorial board—to be ignorant of such obvious realities shows that he, too, is guilty of “cultural elitism,” in Kosinski’s words.
The public knows what the people described respectively as conservatives and liberals today are all about. The fact that Cohen, Time magazine, the New York Times, and the other social climbers and careerists who remain in the old media are too obtuse to understand such obvious facts shows how richly they deserve the ongoing decline in their fortunes.
H/t to Bruce Walker.
The surprising thing wasn’t Kozinski standing up for property rights, or even privacy rights (conservatives in the vein of Barry Goldwater are difficult to find these days, but historically they were important protectors of these civil liberties).
The odd thing was that he was bemoaning the other judges’ perceived inability to appreciate the disproportionate effect the ruling would have on poor people. He seemed to be calling for judges who would employ empathy and pragmatism in coming to their decisions. Perhaps Kozinski should implore Congress to greenlight Obama’s judicial appointments!
Amusing point, TAFFO, but that’s not what Kozinski was doing. He was standing for (1) property rights, (2) the right to be free of government-induced self-incrimination, and (3) equal treatment of all citizens. Those are logical principles, not emotional reactions.
[...] for those who actually read the included link, there is an interesting follow-up here on the author’s conception of Liberal and [...]
“conservatives in the vein of Barry Goldwater are difficult to find these days”
Ever been to a Tea Party rally? And I dare say you’d have found more than a few at the March on Washington.
The only reason TAFFO might not see these folks is because he or she isn’t looking.
And it doesn’t take empathy to realize that a certain income level will allow one to build walls and locked gates that, according to the decision, would be required to keep government from walking onto one’s property and placing a GPS device on one’s car.
Here’s a key bit of text from the 9th Circuit decision:
“The driveway leading up to the trailer was open; agents did not observe any fence, gate, or “No Trespassing” signs indicating that they were not to enter the property. The agents entered Pineda-Moreno’s driveway between 4:00 and 5:00 a.m. and attached the tracking devices to the Jeep.”
The Court’s decision, it’s sad to note is based on precedent, Maisano v. Welcher, 940 F.2d 499, 503 (9th Cir.1991): “In order to establish a reasonable expectation of privacy in [his] driveway, [Pineda-Moreno] must support that expectation by detailing the special features of the driveway itself (i.e. enclosures, barriers, lack of visibility from the street) or the nature of activities performed upon it.”
In other words, the fact that it was private property didn’t matter because it wasn’t surrounded by a fence and gate marked with signs stating “No Trespassing”. If you live in the well-to-do environs of San Francisco, Brentwood, New York, Chicago, etc., etc. you’ve nothing to worry about. If, on the other hand, you live in a trailer park or on some unfenced suburban street occupied by the masses … well, you’re fair game for a government who wants to track your movements.
As Judge Kozinski rightly noted in his strongly worded dissent, “When you glide your BMW into your underground garage or behind an electric gate, you don’t need to worry that somebody might attach a tracking devise to it while you sleep. But the Constitution doesn’t prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel’s breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.”