"1984 may have come a bit later than predicted, but it's here at last."

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"1984 may have come a bit later than predicted, but it's here at last."

"If you have the a cell phone in your pocket, then the government can watch you."

"Are Winston and Julia's cell phones together near a hotel a bit too often? ".The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where the groups hold meetings and ask the phone company for a list of cell phones near those locations."

These are not the paranoid ravings of an anarchist blogger to fifteen of her friends, nor the neo-con conspiratorial palather of a sobbing Glenn Beck to a frothing million, but rather the words of a Chief Judge of the United States 9th Circuit Court of Appeals to his fellow judges in the wake of an August 12 ruling in the PINEDA-MORENO case, in which the Court upheld the right of the Federal Bureau of Investigation to plant GPS tracking devices in a person's car in his driveway that is, unless they can afford a large fence or gated community to ensure a right to the Fourth Amendment.

"I don't think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle's every movement and transmit that information to total strangers," Chief Judge Alex Kozinski writes in his vitriolic and elegant dissent on the ruling of the 9th Circuit, which refused to hear an appeal of defendant Juan Pineda-Moreno, who was caught "green-handed" with two garbage bags of marijuana in his trailer. "There is something creepy and un-American about such clandestine and underhanded behavior."

Kozinski believes that the FBI acting with "un-American" and "underhanded behavior" violated Pinedo-Moreno's Fourth Amendment right to privacy by placing the GPS under his jeep without a warrant. And more striking, he frames the 9th circuit's refusal to hear his case as some form of discrimination against the poor, a form of judicial class warfare:

"But the Constitution doesn't prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism."

A judge critiquing the judicial system for a bias towards the wealthy? Accusing his fellow justices of cultural elitism? Calling the FBI "un-American" while defending a man caught with two garbage bags full of weed? Kozinski must be some sort of liberal plant in the system, an activist judge who makes Sotomayer look like a regular Scalia.

Somebody, call Fox quickly!

Alas, Fox will have a hard time knowing what to make of this one, which is likely why his words aren't there, nor apparently in any major corporate outlet as of 8/14/10.

Kozinski is far from a liberal plant: he counseled Ronald Reagan at the start of his presidency, and was appointed by Reagan to the appeals court in 1985, and according to Emily Bazelon's profile on the Judge in Legal Affairs, he has a picture with Reagan in his office. And according to the profile, "he is deeply suspicious of government power," and a staunch defender of private property and the right to bear arms. And yet, according to Bazelon, Kozinki doesn't appear a man to toe the party line. He also has a picture in his office with US Supreme Court Justice William Brennan Jr., a "liberal hero" and model "activist judge" who, according to the Washington Post "believed the courts should right social wrongs." The Associated Press dubs Kozinski a "Libertarian" Bazelon calls him, playfully, a "troublemaker."

And in his dissenting opinion, which I've reprinted in part below (and you can read in its entirety here), you can see this troublemaker at work, arguing that the judicial system is paving the way for "Oceania," particularly if you happen to be a prole.

Kozinski's dissent is a must-read an eloquent plea to defend our right to privacy. In this first portion, he focuses on the unequal application of the Fourth Amendment for the rich and poor in this case:

The panel authorizes police to do not only what invited strangers could, but also uninvited children--in this case crawl under the car to retrieve a ball and tinker with the undercarriage. But there's no limit to what neighborhood kids will do, given half a chance: They'll jump the fence, crawl under the porch, pick fruit from the trees, set fire to the cat and micturate on the azaleas. To say that the police may do on your property what urchins might do spells the end of Fourth Amendment protections for most people's curtilage [part of a homeowner's property].

The very rich will still be able to protect their privacy with the aid of gates, tall fences, security booths, remote cameras, motion sensors and roving patrols, but the vast majority of the 60 million people living in the Ninth Circuit will see their privacy materially diminished by the panel's ruling. Open driveways, unenclosed porches, basement doors left unlocked, back doors left ajar, yard gates left unlatched, garage doors that don't quite close, ladders propped up under an open window will all be considered invitations for police to sneak in on the theory that a neighborhood child might, in which case, the homeowner "would have no grounds to complain." Id.

There's been much talk about diversity on the bench, but there's one kind of diversity that doesn't exist: No truly poor people are appointed as federal judges, or as state judges for that matter. Judges, regardless of race, ethnicity or sex, are selected from the class of people who don't live in trailers or urban ghettos. The everyday problems of people who live in poverty are not close to our hearts and minds because that's not how we and our friends live. Yet poor people are entitled to privacy, even if they can't afford all the gadgets of the wealthy for ensuring it. Whatever else one may say about Pineda-Moreno, it's perfectly clear that he did not expect-- and certainly did not consent--to have strangers prowl his property in the middle of the night and attach electronic tracking devices to the underside of his car. No one does.

When you glide your BMW into your underground garage or behind an electric gate, you don't need to worry that somebody might attach a tracking device to it while you sleep. But the Constitution doesn't prefer the rich over the poor; the man who parks his car next to his trailer is entitled to the same privacy and peace of mind as the man whose urban fortress is guarded by the Bel Air Patrol. The panel's breezy opinion is troubling on a number of grounds, not least among them its unselfconscious cultural elitism.

Kozinski continues, broadening his critique to the use of surveillance devices in general. He paints a vivid picture of police power gone haywire through the unconstitutional use of tracking devices, such as those used in the Pineda-Moreno case:

The modern devices used in Pineda-Moreno's case can record the car's movements without human intervention--quietly, invisibly, with uncanny precision. A small law enforcement team can deploy a dozen, a hundred, a thousand such devices and keep track of their various movements by computer, with far less effort than was previously needed to follow a single vehicle. The devices create a permanent electronic record that can be compared, contrasted and coordinated to deduce all manner of private information about individuals. By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives.

If you have a cell phone in your pocket, then the government can watch you. Michael Isikoff, The Snitch in Your Pocket, Newsweek, Mar. 1, 2010, available at http:// http://www.newsweek.com/id/233916. At the government's request, the phone company will send out a signal to any cell phone connected to its network, and give the police its location. Last year, law enforcement agents pinged users of just one service provider--Sprint--over eight million times. See Christopher Soghoian, 8 Million Reasons for Real Surveillance Oversight, Slight Paranoia (Dec. 1, 2009) http://paranoia/dubfire. net/2009/12/8-million-reasons-for-real-surveillance.html. The volume of requests grew so large that the 110-member electronic surveillance team couldn't keep up, so Sprint automated the process by developing a web interface that gives agents direct access to users' location data. Id. Other cell phone service providers are not as forthcoming about this practice, so we can only guess how many millions of their customers get pinged by the police every year. See Justin Scheck, Stalkers Exploit Cellphone GPS, Wall St. J., Aug. 5, 2010, at A1, A14 (identifying AT&T and Verizon as providing "law-enforcement[ ] easy access to such data").

Use LoJack or OnStar? Someone's watching you too. E.g., OnStar Stolen Vehicle Assistance, http://www.onstar.com/ us_english/jsp/plans/sva.jsp (last visited July 17, 2010). And it's not just live tracking anymore. Private companies are starting to save location information to build databases that allow for hyper-targeted advertising. E.g., Andrew Heining, What's So Bad About the Google Street View Data Flap?, Christian Sci. Monitor, May 15, 2010, available at click here Companies are amassing huge, ready-made databases of where we've all been. If, as the panel holds, we have no privacy interest in where we go, then the government can mine these databases without a warrant, indeed without any suspicion whatsoever.

By tracking and recording the movements of millions of individuals the government can use computers to detect patterns and develop suspicions. It can also learn a great deal about us because where we go says much about who we are. Are Winston and Julia's cell phones together near a hotel a bit too often? Was Syme's OnStar near an STD clinic? Were Jones, Aaronson and Rutherford at that protest outside the White House? The FBI need no longer deploy agents to infiltrate groups it considers subversive; it can figure out where the groups hold meetings and ask the phone company for a list of cell phones near those locations.

You can preserve your anonymity from prying eyes, even in public, by traveling at night, through heavy traffic, in crowds, by using a circuitous route, disguising your appearance, passing in and out of buildings and being careful not to be followed. But there's no hiding from the all-seeing network of GPS satellites that hover overhead, which never sleep, never blink, never get confused and never lose attention. Nor is there respite from the dense network of cell towers that honeycomb the inhabited United States. Acting together these two technologies alone can provide law enforcement with a swift, efficient, silent, invisible and cheap way of tracking the movements of virtually anyone and everyone they choose. See, e.g., GPS Mini Tracker with Cell Phone Assist Tracker, http://www.spyville.com/passive-gps.html (last visited July 17, 2010). Most targets won't know they need to disguise their movements or turn off their cell phones because they'll have no reason to suspect that Big Brother is watching them.

The Supreme Court in Knotts expressly left open whether "twenty-four hour surveillance of any citizen of this country" by means of "dragnet-type law enforcement practices" violates the Fourth Amendment's guarantee of personal privacy. When requests for cell phone location information have become so numerous that the telephone company must develop a self-service website so that law enforcement agents can retrieve user data from the comfort of their desks, we can safely say that "such dragnet-type law enforcement practices" are already in use. This is precisely the wrong time for a court covering one-fifth of the country's population to say that the Fourth Amendment has no role to play in mediating the voracious appetites of law enforcement.

Kozinski concludes with memorable rage:

I don't think that most people in the United States would agree with the panel that someone who leaves his car parked in his driveway outside the door of his home invites people to crawl under it and attach a device that will track the vehicle's every movement and transmit that information to total strangers. There is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu. This case, if any, deserves the comprehensive, mature and diverse consideration that an en banc panel can provide. We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we're living in Oceania.

Authors Bio:
Adam Bessie is an assistant professor of English at Diablo Valley College, in the San Francisco Bay Area. He is a co-wrote a chapter in the 2011 edition of Project Censored on metaphor and political language, and is a frequent contributor to dailycensored.com, truthout, media-ocracy on diverse issues in education, culture and politics. Follow my essays on Twitter: adambessie