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by nateb2022·1mo ago·view on hn ↗
> Automobiles are highly regulated and driving is a privilege. There is no _right_ to drive a vehicle from point A to point B, in secret or not.

If we accept your premise that the government can spy on you simply because an activity is regulated, then the Fourth Amendment is effectively dead. Under that logic, the state could mandate interior cameras in every heavily regulated business, or search the backpack of every passenger using public transit without a warrant.

You have a reasonable expectation of privacy for the contents of your trunk, your backpack, and your travel history. The police cannot search your trunk without a warrant just because you are driving on public roads. They should not be able to search your travel history either.

2 comments
We probably all agree that a cellphone is closely associated with you and acts as a surrogate brain, so it gets treated as "you", at least as much as the _inside_ of your house or car.

You the right of free travel (with or without your phone). Automobiles are different. You can't take it everywhere; you can't park it everywhere; you can't move it about in secret (plates MUST be displayed, always).

You have an expectation of privacy for the inside of your car. But not the outside of your car. And even the inside... if it's visible from the windows, it's public.

The reason cell tower data is excluded from Third Party Doctrine has nothing to do with the contents of a cell phone. Cell tower data doesn't have any relationship whatsoever to the contents of the phone.

The relevant factors are:

1. It creates a near-complete picture of a person's whereabouts

2. It is effectively not optional to have and carry a cell phone today

You do in fact have a reasonable expectation that the government can't reconstruct a near-perfect timeline of your daily life without a warrant... obviously.

A cellphone is effectively you in the eyes of the law.

Any automobile may be driven by many people. Only 30% of households are single-person households.

We'll see how this plays out in courts. I'll bet the license plate readers survive. More skeptical about facial recognition though.

> A cellphone is effectively you in the eyes of the law.

No. I just laid out the reasons why cell tower data is different. It has nothing to do with whether a cellphone "is effectively you," which obviously it's not.

As Katz established, the Fourth Amendment protects people, NOT places. The assumption that "if it's visible from the windows, it's public" is a dangerous non-sequiter that completely falls apart under any form of jurisprudence.

Your understanding of privacy misapplies the plain view doctrine. Plain view allows the state to seize evidence provided that the officer seizing the evidence has a lawful right to access or observe the seized object. (Collins v. Virginia)

An officer glancing through a car window is performing a constitutional act.

However, were the state to compile a history of your car's location, which it does, that exposes your "familial, political, professional, religious, and sexual associations." (Jones) This compilation of data is an action legally defined as a search, since it turns up data NOT readily available in plain view. And this search takes place without warrant.

> The police cannot search your trunk without a warrant just because you are driving on public roads. They should not be able to search your travel history either.

Can the police take pictures of every car they see and use that to determine your travel history? If the police don't have the expertise to maintain such a network can they pay a third party to do so?

> Can the police take pictures of every car they see and use that to determine your travel history?

You conflate the generally unremarkable act of taking a picture of a single car in public with the indiscriminate collection of photos of all vehicles. The former is a constitutional, isolated observation. The latter is a search, since in toto it reveals personal information.

> If the police don't have the expertise to maintain such a network can they pay a third party to do so?

May the police pay a third party to execute warrantless searches?

In the 1760s there was something called a writ of assistance, which allowed British officers to search any location for smuggled goods without specific suspicion.

The Framers of the Constitution drafted the Fourth Amendment in direct response to these abusive general warrants, protecting against the exact kind of arbitrary power that placed "the liberty of every man in the hands of every petty officer." (John Adams)

Moreso, Adams maintains:

  Writs in their nature are temporary things. When the purposes for which they are issued are answered, they exist no more; but these live forever; no one can be called to account...

  But these prove no more than what I before observed, that special writs may be granted on oath and probable suspicion. The act of 7 and 8 William III that the officers of the plantations shall have the same powers, etc., is confined to this sense; that an officer should show probable ground; should take his oath of it; should do this before a magistrate; and that such magistrate, if he think proper, should issue a special warrant to a constable to search the places.
As Justice Sotomayor noted in United States v. Jones, logging a vehicle's public movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." An action revealing all this is ipso facto a search; and Flock performs this search in the very absence of a specific warrant that Adams so vehemently opposed.
US v Jones was in the context of placing an actual recording device on an individual vehicle, which seems dramatically distinct from observing every passing vehicle and recording what you saw. Police cars already do this to some extent with ALPR, scanning for plates that have been reported stolen.

https://www.leonardocompany-us.com/lpr/blog/new-technology-h...

> US v Jones was in the context of placing an actual recording device on an individual vehicle

You are focusing exclusively on Justice Scalia's opinion. Five other Justices provided two separate concurrences in that same case, including Alito's:

  society’s expectation has been that law enforcement agents and others would not—and indeed, in the main, simply could not—secretly monitor and catalogue every single movement of an individual’s car for a very long period.
I appreciate that quote. My take was indeed founded on the majority opinion, which holds out non-physical intrusions as a separate issue that the verdict did not reach.

"It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question."

> You conflate the generally unremarkable act of taking a picture of a single car in public

I didn't say anything about a single car. Can the police department post police officers on every street corner and instruct them to record license plate numbers for every car they see? Would that constitute a search and if so a search of what exactly? If that's not a search why would a police-sanctioned camera be any different? I'm genuinely interested in understanding the distinction.

I'm not in love with the encroaching mass surveillance society but in terms of privacy in public there is little in the US by right.

> Can the police department post police officers on every street corner and instruct them to record license plate numbers for every car they see? Would that constitute a search and if so a search of what exactly?

Let me quote myself on this:

> As Justice Sotomayor noted in United States v. Jones, logging a vehicle's public movements "reflects a wealth of detail about her familial, political, professional, religious, and sexual associations." An action revealing all this is ipso facto a search.

> I'm not in love with the encroaching mass surveillance society but in terms of privacy in public there is little in the US by right.

Suggesting that a citizen possesses "little privacy in public by right" is to stand the American constitutional order squarely on its head. You have a very Eurocentric understanding of rights, as if they're concessions by the king/government to the people. We do things the opposite way.

The enumeration of certain rights shall not be construed to deny or disparage others retained by the people (Ninth Amendment). Further, the Tenth Amendment explicitly reserves powers not delegated to the government to the states or to the people. What's your proposed basis, historic or constitutionally, granting the state the power to aggregate people's location history? The burden does not fall on the citizen to produce a right not to be monitored; it rests entirely on the state to demonstrate the authority to monitor.

> What's your proposed basis, historic or constitutionally, granting the state the power to aggregate people's location history?

Is the executive empowered to enforce laws? Is recording observations a function of law enforcement? Society recognizes things like "plain view" in that if an officer is legally in a place and can see illegal activity they may act on it. So it would follow that they can record their observations about suspected illegal activity and legal activity alike (because suspected illegal activity might actually be legal in fact).

So if police can observe things freely and they can record their observations, well can't police departments store and search through police records?

The state will take for itself power that the people have but do not wield.

> So if police can observe things freely and they can record their observations, well can't police departments store and search through police records?

This is unnecessarily reductive; if we reduce all action enough we can justify anything as simply continuous 1 centimeter movement; e.g. grand theft would be innocently grasping an object in a store, and then a series of 1 centimeter movements which you could independently justify as "freedom to move."

We understand complex actions to have complex consequences, and the aggregation of vehicular data is itself a search, which by our laws requires a warrant. Jurisprudence evaluates the totality of an act and its consequences.

> The state will take for itself power that the people have but do not wield.

The Framers of the Constitution would understand this idea as tyranny.