Andrew Weissmann, the top lawyer at the FBI, says the Supreme Court made a distinction about the Fourth Amendment, which guards against unreasonable searches and seizures, ruling that computers that follow suspects are much more intrusive than people doing the same thing.
“The court essentially is saying that you have an expectation of privacy even though if it was done by humans there would be no violation,” Weissmann says. “But because it's done by machines, it is.”
I guess I should read more about this decision. I mean, on the one hand, it seems to me there’s a pretty obvious practical difference that is going to affect the number of people the government ends up tracking twenty years down the road (in an “all of them” vs. “not so very many of them” sort of way). Not to put too fine a point on it, but if there weren’t a real difference, the FBI wouldn’t be bitching about the decision. On the other hand, yeah, the Fourth Amendment doesn’t seem to be drawing that kind of distinction. So hmmm.
“And the problem with that is that a search warrant requires probable cause to be shown and many of these techniques are things that you use in order to establish probable cause,” Weissmann says. “If you require probable cause for every technique, then you are making it very very hard for law enforcement.”
I am so glad I don’t have the kind of job that would be a lot easier if only we didn’t have a Bill of Rights.