Why is there so much bad privacy law, and so many privacy victims? Here's my theory. Privacy advocates exploit that first uncomfortable moment when we realize that technology is changing our world, offering a Luddite illusion that law can prevent uncomfortable change. The result is laws and court rulings on privacy that quickly become quaint.
It’s not hard to find support for that view if you compare United States v. Jones, the GPS 4th Amendment case, with an article in today’s Washington Post about the rapid spread of license plate readers:
When stored over time, the collected data can be used instantaneously or can help with complex analysis, such as whether a car appears to have been followed by another car or if cars are traveling in a convoy. Police also have begun using them as a tool to prevent crime. By positioning them in nightclub parking lots, for example, police can collect information about who is there. If members of rival gangs appear at a club, police can send patrol cars there to squelch any flare-ups before they turn violent. After a crime, police can gather a list of potential witnesses in seconds. … Arlington police cars equipped with the readers regularly drive through the parking garage at the Pentagon City mall looking for stolen cars, checking hundreds of them in a matter of minutes as they cruise up and down the aisles.
At the same time that license plate readers are spreading across the landscape, companies like Google and Apple are investing heavily in location-based services for smartphones. As a result, we’re rapidly losing any expectation that our location is private.