No reasonable expectation of privacy

The ‘right to privacy‘ debate was dramatically revived Thursday as news reports spread saying the Obama Administration was seeking a court ruling so they could track cell phone usage, including the time and location of placed or received calls.

Even though police are tapping into the locations of mobile phones thousands of times a year, the legal ground rules remain unclear, and federal privacy laws written a generation ago are ambiguous at best. On Friday, the first federal appeals court to consider the topic will hear oral arguments (PDF) in a case that could establish new standards for locating wireless devices.

In that case, the Obama administration has argued that warrantless tracking is permitted because Americans enjoy no “reasonable expectation of privacy” in their–or at least their cell phones’–whereabouts. U.S. Department of Justice lawyers say that “a customer’s Fourth Amendment rights are not violated when the phone company reveals to the government its own records” that show where a mobile device placed and received calls.

Those claims have alarmed the ACLU and other civil liberties groups, which have opposed the Justice Department’s request and plan to tell the U.S. Third Circuit Court of Appeals in Philadelphia that Americans’ privacy deserves more protection and judicial oversight than what the administration has proposed.

“This is a critical question for privacy in the 21st century,” says Kevin Bankston, an attorney at the Electronic Frontier Foundation who will be arguing on Friday. “If the courts do side with the government, that means that everywhere we go, in the real world and online, will be an open book to the government unprotected by the Fourth Amendment.”

This begs the age-old question – does the Constitution afford a right to privacy? This also poses a dilemma for the GOP, who on one hand has countered for years that a very slim, if any, right to privacy exists – especially when it comes to a woman’s right to choose – and also in terms of warrantless wiretapping. On the other hand, they can’t very well come out and say ‘we support the Administration’s decision to seek authority to track every cell phone in America.’

It also seems a bit hypocritical coming from a Democrat Administration to say there is ‘no reasonable expectation of privacy’ afforded by federal statute or the Constitution. They have, opposite the GOP, for years argued the Bill of Rights creates a right to privacy out of the shadows of other Amendments.

We’re working on the ‘right to privacy’ in my Con Law class right now, so this is an interesting topic. I for one don’t think a right to privacy gives a woman the right to abort a child, even though I think the Framers definitely intended for some zone of privacy to exist when they wrote the Constitution. The principles within the 1st, 3rd, 4th, 5th and 9th Amendments are broad enough to create a right to privacy, regardless of the abortion issue. The Court endorsed this in Griswold many years ago.

Indeed, some of the Constitution’s framers were worried that by enumerating the people’s rights, some would interpret the Bill of Rights to be our only rights. I certainly think there are unenumerated rights not listed in the Constitution. I think those rights, like all of our rights, come from God and while not necessarily as unalienable as are the enumerated rights in the Constitution, they still deserve to be protected. I think a right to privacy is one of those rights.

The difference between the warrantless wiretapping that was endorsed by the Bush Administration and this should be noted. The Bush Administration sought to wiretap the phone calls of terrorists not protected by the Constitution as part of prosecuting a war. The Obama Administration has not made clear how tracking the cell phones of all Americans pertains to the War on Terror, if at all.

With that said, what stands out to me is blatant disregard for the same ‘right to privacy’ the left depends on to defend abortion.