No Place to Hide: First Amendment Protection for Location
Privacy
June 2, 2011
Theodore Claypoole
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The following article was published in the BNA Electronic Commerce Law Reporter (16 ECLR
869). It is republished here with permission.
The place you stand on the earth can speak volumes about you. Are you at home or at work? Are
you in a meeting of political radicals or dining at an expensive restaurant? Are you peeking into
a neighbor’s window or accepting an award for your contributions to humanity? Are you deep in
the woods or lost in a crowd? Given the lack of public discourse on the subject, it seems that
most Americans are not concerned about the privacy of their location. But the ability of family,
friends, employers and the government to know where you are at any given moment is increasing
dramatically with modern technology, and this loss of location privacy is affecting your
fundamental rights under the Constitution.
The privacy of a person’s location has a practical component, as population pushes back
wilderness and electronic sensors capture people’s activities. Location privacy also includes a
legal component, as law enforcement agencies press the courts for more rights to monitor
citizens and more access into American private lives. So if a person is concerned about the
privacy of his location, two important and intertwined questions must be addressed: 1) CAN a
person act anonymously given the nature of surveillance technology improvements, and 2) does
a person have a RIGHT to act anonymously under the laws of the land. As technology to
constantly capture our location improves, then the answer to the legal question becomes more
important, because if we postpone answering the question long enough, then technology will
overrun any opportunity to establish a meaningful location privacy right. The technology will
answer all relevant questions before the legislatures or courts can consider them.
Many of the most interesting constitutional problems faced by courts today arise because
technology and society have evolved in ways that the founders could never have considered, and
that we could not expect them to have addressed. The need to assert the privacy of one’s location
would have been unfathomable to even the farthest thinkers of the eighteenth century, but the
ability to act or even exist outside the watchful eye of government is rapidly disappearing in the
full-time surveillance society of the United States in the twenty-first century.
When the American founding fathers were drafting and voting on the Constitution of the United
