(CN) – In one of two sharp dissents from the 9th Circuit’s decision not to rehear the case of a man tracked by police with GPS, Chief Judge Alex Kozinski cautioned that if courts refuse to protect the right to privacy, “Some day, soon, we may wake up and find we’re living in Oceania.”
Police who were suspicious of Juan Pineda-Moreno snuck into his driveway in the middle of the night and attached a GPS tracking system to the bottom of his car. They were able to track all of his travels without having to physically observe him.
A 9th Circuit panel ruled that Pineda’s Fourth Amendment right to privacy had not been violated by the technology, even though it acknowledged that the driveway was part of his home.
A majority refused to rehear the case before a full court panel. Kozinski and Judge Stephen Reinhardt filed dissents strongly opposing the decision and expressing concern for what it could mean for millions of Americans.
“1984 may have come a bit later than predicted, but it’s here at last,” Kozinski wrote. He called the police’s “underhanded” activity “creepy and un-American.” Kozinski also discussed protections the law affords the rich but denies the poor.
“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,” Kozinski wrote.
He argued that the everyday problems of people who live in poverty are not close to the hearts and minds of the wealthier and more powerful, because the two groups live in different worlds.
“Poor people are entitled to privacy, even if they can’t afford all the gadgets of the wealthy for ensuring it,” he wrote.
Judge Reinhardt agreed.
“Today’s decision is but one more step down the gloomy path the current Judiciary has chosen to follow with regard to the liberties protected by the Fourth Amendment,” he wrote. “Sadly, I predict that there will be many more such decisions to come.”