Most Americans seem to inured to the fact the government — in concert with the corporate sector — has found a zillion ways to pillage their privacy over the last decade using an ever-evolving range of technology: police who stop you on the side of the road can now extract everything from your cell phone if you’re naive enough to hand it to them for even a second. Police can also tell if you have outstanding parking tickets just by trolling a parking lot and aiming a laser thingy at your license plate. At the same time, Verizon has found a way to harvest all of your personal information — buying, surfing, even where you might stop off for a coffee — and sell it to the highest bidder. At some point, it might be the police or the federal government who come calling for that info — whether they have a warrant or not–  and they won’t need to pay.

If you are unlucky enough to be the target of a criminal investigation — or perhaps just tied in someway to someone who is (a boyfriend? a family member?), the police think they can, without a warrant, affix a GPS monitor under the carriage of your car — anywhere you can’t see it — and follow you around for as long as they like. Apparently tired of wearing the shoe leather down through good old fashioned police work, police have been doing this for a while.

There have been conflicting rulings about whether tracking people with GPS without warrant is a violation of the Fourth Amendment right against unlawful search and seizure. One such complaint was brought to court by a drug dealer appealing his conviction which was based in part on the use of GPS tracking and led to a life sentence in prison. The DC Federal Court of Appeals was the first court to challenge the practice when it threw out Antoine Jones’ conviction in 2010, finding that the use of GPS to follow him 24-hours a day for a month violated his Constitutional rights. The Justice Department is appealing, and that is where the case stands now, in the High Court.

This is a big one. The next critical test of that ever-thinning line between what constitutes technological evolution and what is in fact, the irrevocable erosion of one’s personal freedoms as codified by the Constitution. How will the justices rule? If they side with the government, most of us know that the aforementioned slippery slope will have hit an ice patch toward an all-out surveillance state: just take a look at the UK. They had to start somewhere.

But not all justices appear inclined to take the ride. In what might be the most positive development for holding the line since arguments began, a number of them yesterday invoked the menacing spector of Big Brother. Yes, that one, from George Orwell’s 1984.

Big Brother Is Watching, from film version of Orwell's 1984

From Wired yesterday:

Justice Stephen Breyer told Deputy Solicitor General Michael Dreeben that, “If you win this case, there is nothing to prevent the police or government from monitoring 24 hours a day every citizen of the United States.”

Breyer said that “sounds like 1984.”

Chief Justice John Roberts wondered aloud whether the government’s position was that it may secretly attach GPS devices to the cars of the nine members of the Supreme Court without a warrant.

“You think they are entitled to do that?” Roberts asked.

“The justices of the Supreme Court?” Dreeben replied.

“So your answer is, ‘yes,” you could tomorrow decide that you put a GPS device on every one of our cars, follow us for a month; no problem under the Constitution?” the chief justice continued.

“Well, equally, Mr. Chief Justice, if the FBI wanted to it could put its team of surveillance agents around the clock on any individual and follow that individual’s movements as they went around on the public streets …, Dreeben replied.

Justice Sonia Sotomayor suggested the government’s position went too far, especially in the age of “smart phones” that contain GPS tracking devices.

“It would be OK to put a computer chip and put it on somebody’s overcoat?” she asked. Dreeben said Sotomayor was off base because her scenario would allow GPS monitoring inside a home. “That is off-limits,” he said.

However, “a car parked in the garage,” he added, “does not have a reasonable expectation of privacy.”

But the justices seemed troubled on whether a warrant was always necessary, and whether they should take into account how long the monitoring continues. “Where do you draw the line?” Justice Samuel Alito asked.

Why go so far as ‘a chip?’ Why not suggest that our cellular phones would give police the same ability — to track us everywhere, even in our homes.

From Catherine Crump at the ACLU:

This kind of (GPS) tracking is extremely invasive, because if the government knows where you are, it knows who you are. As the Jones appellate court explained in its ruling that the government violated the Fourth Amendment, “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

Cell phone tracking can reveal our private associations and relationships with one another. The government could make note of whenever people being tracked crossed path or spent time together, showing who our friends, associates and lovers are.

If you want to see where the slippery slope of warrantless GPS tracking goes, just check in with the Brits.

Britain’s largest police force is operating covert surveillance technology that can masquerade as a mobile phone network, transmitting a signal that allows authorities to shut off phones remotely, intercept communications and gather data about thousands of users in a targeted area.

The surveillance system has been procured by the Metropolitan police from Leeds-based company Datong plc, which counts the US Secret Service, the Ministry of Defence and regimes in the Middle East among its customers. Strictly classified under government protocol as “Listed X”, it can emit a signal over an area of up to an estimated 10 sq km, forcing hundreds of mobile phones per minute to release their unique IMSI and IMEI identity codes, which can be used to track a person’s movements in real time.

The disclosure has caused concern among lawyers and privacy groups that large numbers of innocent people could be unwittingly implicated in covert intelligence gathering. The Met has refused to confirm whether the system is used in public order situations, such as during large protests or demonstrations.

There are plenty of privacy activists who would say London is already 1984, given that Big Brother is everywhere there, and in addition, “the eye” in the sky is now carried around in the form of ubiquitous  iPhones and Smart Phones in coats and hip pockets, the GPS and clever “apps” monitoring their every activity online, and off, and without the Constitutional bulwark we enjoy here. For now. We may be one ruling away from becoming what we fear the most. I’m glad that at least some of the justices seem to know it.