While doing some fine tuning for a research article on Virginia’s recently passed so called “GPS Tracking Bill” HB 1981, I have come to really understand the effects of US vs. Jones and what the core issues are for electronic/personal tracking devices as well as why HB 1981 is an epic failure for the Chief Patron of this Bill, Delegate Joe T. May and for privacy of the citizens of the Commonwealth of Virginia.
Understanding the genesis of Delegate May’s Bill and others like it across the Country is critical to understanding the faults of the end product; criminalization of non-criminal behavior.
Keep in mind that although this is not the first Legislation to be proposed since the Supreme Court ruled in US v. Jones; it is one of the first laws to make its way to the Governor’s desk to be enacted. Once enacted, Virginia will be a role model for other States to craft their tracking laws.
Unfortunately there is such a rush by our legislators to enforce protections for our civil rights that common sense is often thrown out the window. It is impossible to serve special interests, constituents, and personal political gain. Not all that surprising to some of you, however, understanding this flaw with politics in general and that many good intentioned laws go wrong is important to understanding this legislation’s effects, enforceability and long lasting consequences.
This article will be just part one in a series. As this issue is a bit of a rabbit hole of sorts. Understanding the tracking technology and how it is used, for good and bad, will vary by reader and as a result I intend on covering all aspects.
The Core Issue of GPS Tracking (Electronic Tracking Devices)
Technology has advanced at lightning speed. Seemingly the next great thing of tomorrow is yesterday’s news before it hits the store shelf. Because Law Enforcement is only a step removed from our Military Branches, the genesis for the majority of our spy technology; including today’s GPS technology, our Law Enforcement branches have quicker access than that of the general public to implement devices into their investigation tool box, technique and practices.
So let’s take a look at the underlying issue. After all tracking technology isn’t the problem, it is the way that it is used, and often by ne’er-do-wells, that creates the illusion that all tracking technology is for nefarious purposes.
The US Constitution is designed to ensure that there are certain rights afforded to every US Citizen; particularly rights from illegitimate government intrusion. Unless you have lived under a rock throughout the last decade you are sure to have heard about gun legislation and the soft steps that the government must take to make any changes to gun regulations so as to keep from stepping on the Constitutional rights to bear arms. Despite the public outcry after the Sandy Hook tragedy the politicians are still dealing with the age old battle of serving special interests, their constituents, and their own personal gain.
The use of tracking devices (of all forms) is the same sort of issue; it affects constitutionally protected rights of all US Citizens. The electronic tracking issue, both for person and property, really boils down to the 4th Amendment and the privacy rights of the US Citizen that protect us from the Government illegally spying on us.
Perhaps the collision of old law versus advances in technology creates a kind of panic. But over regulation of human behavior leads to the criminalization of non-criminal behavior. The unintended consequences of criminalizing behavior that truly isn’t criminal is the epitome of government intrusion.
So how does the government get into the position of over-regulation? Over-criminalization? Often times the state regulations are unclear and end up in US District Courts. The US District Courts occasionally disagree amongst one another and the cases end up in the Supreme Court.
Looking at the 4th Amendment and how it applies to US vs. Jones is a perfect example of old law and new technology clashing. To further complicate the laws the US District Courts rule on very similar legal issues yet often yield very different rulings. By the time a case makes to the Supreme Court, the state regulation is being decided for applicability to the nation; to each and every state.
Clarification of the District Courts Rulings is why President Obama urged the US Supreme Court to hear the Jones case in the first place. The President believed, as did many of us, that because the District Courts had largely agreed on the use of warrantless tracking devices under certain conditions that the issue of warrantless tracking devices could be put to rest by the US Supreme Court Justices. The Supreme Court ruled unanimously that the Government had erred in the placement and monitoring of a GPS tracking device it was split 5 to 4 on why. The majority view was that the Government had trespassed on private property by placing and monitoring the tracker while the minority saw it as a violation of Jones’s 4th amendment rights.
Paying attention to the regulations as they come through our state level legislative body empowers citizens to take a stand, either for or against, rules that make certain behaviors criminal acts.
It is not the intent of this Author to attack Delegate May or any other politician. The intent is to demystify the GPS Tracking issue as a whole, and to give you the reader a factual background so that you are better informed. Stay Tuned……. More on its way, including an interview with Delegate Joe T. May the Chief Patron of Virginia HB1981. To receive further updates to this article join my list by clicking here.
Continue to Part 2 of this series
Written by John Morse
Footnote: The Governor of Virginia has been contacted for his input on this legislation and we are awaiting his response. The Governor is attending the funeral of Master Trooper Walker today and as a result will be delayed in providing his response. This Authors prayers goes out to the Walker Family.