trapwire could be illegal

io9 | Last week, whistleblower site Wikileaks posted some internal company documents about a high-tech surveillance system called Trapwire, which is used by governments and private companies to identify "suspicious" or "terrorist" behavior. Subsequently, Wikileaks was brought down by a concerted DDOS attack, and conspiracy theories mushroomed online about the Trapwire system, which was said to include foolproof facial recognition software (it doesn't) and to siphon private surveillance camera footage to intelligence agents (this is whatTrapwire claims that its eponymous product does). Much has also been made of the many former CIA agents and officials who work at Trapwire and its former parent company Abraxas.

Conspiracy theories aside, there are a lot of shady aspects to Trapwire. And one of the shadiest is its dubious legal status. A recent ruling by the Supreme Court could mean that using Trapwire to track people is illegal without a search warrant.

US v. Jones

At issue is a case called US v. Jones, decided by the Supreme Court earlier this year, in which police had secretly put a GPS device on a suspect's car and tracked it for nearly a month without a warrant. As a result, they convicted the suspect of dealing drugs. But the Court decided that the use of a GPS in this case was a violation of the Fourth Amendment, which is designed to protect people from unreasonable, privacy-invading searches. How could tracking this man's car in public really be a violation of privacy? After all, many people saw him driving around.

Several members of the Court found that the problem was that the officers were going beyond simply seeing the car in public. They were tracking its every move for a month, and then analyzing all that data for patterns they never would have seen if they simply spotted the car as it drove by. This act tipped the police officers' acts from reasonable to unreasonable under the law. One of the barometers the Court uses to measure whether an act invades privacy is to compare it to what would have been possible at the time the Constitution was framed, over 200 years ago. Concurring with the US v. Jones decision, Justice Alioto wrote, memorably:

Is it possible to imagine a case in which a constable secreted himself somewhere in a coach and remained there for a period of time in order to monitor the movements of the coach's owner? . . . The Court suggests that something like this might have occurred in 1791, but this would have required either a gigantic coach, a very tiny constable, or both-not to mention a constable with incredible fortitude and patience

In other words, the kind of public monitoring referred to in the Fourth Amendment does not include monitoring people's every move and analyzing it using surveillance technology.

Given this interpretation of the Fourth Amendment, it's very possible that the government's warrantless use of Trapwire would also be deemed an invasion of privacy.