The Surveillance State, Now at Bargain-Basement Prices

If you’re concerned about
fiscal responsibility and personal privacy, there’s mixed
news for you. The super-creepy surveillance techniques in which
government officials increasingly indulge themselves come with a
declining price tag. That’s the good-ish news. The bad news is
that, no friggin’ surprise, government is likely to buy ever-more
on-the-cheap eavesdropping precisely because of those
bargain-basement prices—unless new legal barriers intervene. Legal
scholars examining the phenomenon say that decining costs should be
held against use of new surveillance techniques by the
courts. Well…we can hope.

In a Yale Law Journal article parsing the United
States v. Jones ruling that attaching a GPS device to a
vehicle constitutes a search under the Fourth Amendment, Kevin S.
Bankston and Ashkan Soltani open with a relevant quote by Judge
Richard Posner from a 2007
case: “Technological progress poses a threat to privacy by
enabling an extent of surveillance that in earlier times would have
been prohibitively expensive.”

Posner issued his warning about the growing ease of
technological surveillance even while upholding a conviction in a
case involving electronic tracking. He cautioned that the use of a
tracking device in the case at hand might be justified, but that
mass surveillance was an increasing concern that needed to be
addressed by the courts.

United States v. Jones did that, but not in an
especially satisfactory way. Bankston and Soltani write:

The Jones concurrences, taken together, are potentially
a watershed moment in the Court’s Fourth Amendment jurisprudence.
Prior to Jones, the Court’s precedent on location
tracking—regarding radio “beeper”-based vehicle tracking in the
1980s—indicated that one could have no reasonable expectation of
privacy in one’s public movements. In Jones, five Justices
rejected that proposition, at least with respect to prolonged
government surveillance of one’s public movements. Unfortunately,
those Justices stopped short of clarifying when one does have such
an expectation or when surveillance violates it—other than Justice
Alito’s conclusion that “the line was surely crossed before the
4-week mark.”

George Washington University Professor of Law Orin Kerr offered
what he calls the “equilibrium-adjustment”
theory of the Fourth Amendment (PDF)—basically, that
constitutional privacy protections should be taken as a constant,
with specific restrictions on searches and seizures shifted to
maintain them lative to government officials’ ability to intrude
into our lives.

But how you measure the state’s ability to intrude? Yes, we know
that surveillance is getting easier, but adjusting protections
requires quantifying that ease in some way.

So Bankston and Soltani suggest measuring the cost of tracking
people and using that as a guideline. And the costs they come up
with are interesting. For instance, they estimate the cost of a
foot pursuit of a single suspect at $50 per hour, per agent.
Tailing a car with another car comes in at $105 per hour, using the
Internal Revenue Service’s standard deduction and making
assumptions about speed and time spent in a vehicle. More cops in
cars equals more cost.

“Stingray”
cell phone trackers, surprisingly, aren’t that cheap: Bankston and
Soltani estimate their use at $105 per hour, because of the
personnel-intensive way they’re deployed.

But as the tech gets more advanced, and more remote from the
target, the cost goes down, down, down… Tracking a vehicle with a
GPS device can cost as little as pennies per hour—especially once
you’ve amortized the personnel costs of installation over a few
days.

Getting cell phone location data from a carrier can be even
cheaper. Why wouldn’t it be, since the work is farmed out to a
private company that then shoulders most of whatever costs may be
involved?

These plummeting costs, the authors suggest, are an effective
way of monitoring the declining barriers to surveillance by the
government. Those declining barriers should require greater
restrictions on the state in order to maintain privacy
protections.

Relying on the surveillance costs involved in these precedents,
we arrive at a rough rule of thumb: If the cost of the surveillance
using the new technique is an order of magnitude (ten times) less
than the cost of the surveillance without using the new technique,
then the new technique violates a reasonable expectation of
privacy. …

Speaking more generally, any technology used for mass location
surveillance would trigger our rule, because as the number of
targets increases, the cost of tracking each one approaches
zero.

That’s an interesting approach, and one that’s at least worthy
of debate, whether or not the courts take it up.

But it’s also worth seeing, in dollars and cents, just how
dramatically the cost of keeping tabs on us is dropping for
government agencies—and the temptations that must pose for
officials who see their budgets effectively expanding in leaps and
bounds when it comes to exercising their snoopy instincts.