Policymakers must ensure that the privacy pendulum does not swing so far that public safety is compromised

It may be the biggest ongoing legal question in a free society: How does the government establish rules that respect the privacy rights of its citizens while also taking the necessary precautions needed to ensure their safety?

It’s a never-ending question that not only gets asked repeatedly, but the “correct” answer can vary widely, depending on the political and technological environments at the time.

In the wake of the 9/11 terrorist attacks, security measures were increased significantly, some of which intruded on personal privacy much more than many citizens and some legal analysts felt was necessary or appropriate. Today, in the wake of reports regarding National Security Administration (NSA) spying practices, political pressure is being exerted to take actions that would prohibit such government activity.

It’s a philosophical and political pendulum that tends to swing back and forth. No one wants an Orwellian 1984 society, but we all want government officials to have the tools necessary to keep them safe. Unfortunately, it’s not always clear where to draw the legal lines to make both circumstances exist.

While it is difficult to keep policies abreast with changing political winds, it’s even tougher to have policies that remain relevant in the face of technological development, which happens much faster than political changes and continue to accelerate with each passing day.

In a world where location-based services and computer-generated analytics are the norm, the amount of surveillance that can be done is almost limitless, if funding is available to support the prerequisite technology. What surveillance  should be done is tougher call involving constitutional rights and moral responsibilities.

A few months ago, a court in Arizona ruled that law enforcement cannot put a GPS tracking device on a suspect’s vehicle for the purposes of monitoring the suspect’s whereabouts without first getting a warrant. The case overturned a conviction of drug trafficking, because the only way law enforcement knew the location of the suspect after the contraband was acquired was because of the GPS tracking device.

In the opinion, the court acknowledged that differing circumstances for separate cases could impact its view on the matter, but I didn’t see any warrantless exceptions outlined in the ruling (of course, I’m not a lawyer, so it’s possible I missed something).

This had me worried, because a no-exception viewpoint of the ruling would mean that an intriguing technology I was writing about at the time theoretically would be prohibited. StarChase allows public-safety officers to launch a GPS tracking device that affixes onto a vehicle that has refused to pull over when requested. Instead of continuing to pursue the suspect vehicle in what often could result in a high-speed chase—a situation that is dangerous for participants and innocent bystanders—the GPS location of the vehicle is tracked and an orderly plan can be established to apprehend the suspect.

While the StarChase approach would seem to be much safer than a high-speed chase—and thereby in the public’s best interest—the fact that it involves using GPS tracking without the suspect’s permission and without a warrant seemed troubling, based on the court ruling in Arizona.