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If Only All Policemen were Leroy Jethro Gibbs

As a fan of NCIS, I’m quite aware of the government's ability to track the location of individuals through their cell phones. One of the show’s recurring motifs involves a junior special agent hacking into the locational data of a suspect’s phone without ever obtaining so much as a court order. Luckily, NCIS is led by one Leroy Jethro Gibbs, a former Marine of exemplary character and intuitive knowledge. Gibbs routinely acts upon his gut instinct, and happens to always be correct in deciding whether a suspect is guilty.

If all police officers were like Gibbs, or at least led by someone like Gibbs, then we might not need privacy protections. In fact, any limitations on government at all would arguably be unduly restrictive. If there were true philosopher-kings who had the requisite knowledge and character, then ceding to them unlimited power to plan the affairs of others would not be so bad (at least from a consequentialist point of view).

In the real world, however, government officials, including policemen, possess sharply limited knowledge and are not always benevolent. The Constitution properly recognizes these limitations, and thus enshrines protections for our “persons, houses, papers, and effects” in the Fourth Amendment. In general, government officials must obtain a warrant supported by probable cause from a neutral judge before searching or seizing private digital information. As James Madison famously stated in Federalist #51:

It may be a reflection on human nature, that such devices should be necessary to control the abuses of government. But what is government itself, but the greatest of all reflections on human nature? If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

In other words, the Constitution's protections contemplate a nation in which not all policemen share Gibbs’ omniscience and benevolence. Unfortunately, however, Supreme Court precedent and outdated statutes have effectively created a massive hole in privacy protection when it comes to the tracking locational data through cell phones and other mobile devices. A recent ACLU report based on Freedom of Information Act requests revealed that this hole is big enough to allow police forces throughout the country to engage in cell phone tracking. Alarmingly, only a few agencies reported to abide by the warrant and probable cause standard of the Fourth Amendment when obtaining such information.

This is why it’s important for Congress to pass H.R. 2168, the “Geolocational Privacy and Surveillance Act.” The bill would generally require law enforcement officials to obtain a warrant supported by probable cause in order to procure geolocational data through the use of cell phones or other mobile devices. This would restore the balance to the one struck by the Fourth Amendment, allowing officials to protect the public while respecting individual liberties.

Some groups representing police officers argue that attaching Fourth Amendment protections to geolocational data would simply “slow down the apprehension of murderers and rapists so they can build their trophy wall by increasing the amount of legal documents necessary to gather information.” However, Fourth Amendment jurisprudence already has exceptions to the warrant requirement. In Mincey v. Arizona, 437 U.S. 385, 392 (1978), the Court stated “[n]umerous state and federal cases have recognized that the Fourth Amendment does not bar police officers from making warrantless entries and searches when they reasonably believe that a person within is in need of immediate aid.”

H.R. 2168 also contains exceptions to its warrant requirement, permitting the interception of locational information gathered in the normal course of business, for conducting foreign intelligence surveillance, for consent, for public information, for emergency information, and for cases involving theft and fraud. The emergency exception allows for access to geolocational data “in circumstances in which it is reasonable to believe that the life or safety of the person is threatened, to assist the person.”

Arguably, most of the cases dealt with by Gibbs' team on NCIS would fit into this emergency exception anyway. But until all government officials are as trustworthy as Gibbs, greater protections than those observed by his team and real-life policemen around the country are necessary.