The warrant was not an inconvenience — it was a principle

The Kansas Justice Institute has filed suit against Wichita's automated license-plate-reader program, arguing — as Reason reports — that the system turns an ordinary license plate into "the functional equivalent of a 'GPS tracking device.'" The suit rests on the Kansas constitution's privacy protections. The civic question underneath it, however, is older than any state constitution and is as American as the writs of assistance that helped ignite our Revolution.

A government that may photograph every subject on a public road, log the time and location of that photograph, and retain that record indefinitely has built an instrument of surveillance that no probable cause, no warrant, no individualized suspicion is required to deploy. It watches all to find a few. That inversion of the proper relationship between the state and the citizen is precisely what the Fourth Amendment was designed to prevent. The colonists knew what it meant to have their papers and effects searched at the pleasure of a Crown officer; they wrote the warrant requirement to make that experience impossible in the Republic they were building.

I confess I could not have imagined the technical particulars — cameras that read ten thousand plates an hour, databases that preserve years of movement — but I need not have imagined them to judge their civic character. The shape of the question is familiar. When power acquires a tool that permits it to know where every citizen travels, at what hour, in whose company, it has acquired a power over conscience and association that is incompatible with free government. It matters not whether the tool is a network of paid informers or a network of optical sensors; the effect on liberty is the same.

The defenders of such programs will argue, as defenders of general warrants always have argued, that the innocent have nothing to fear. This is precisely backwards. The innocent have everything to fear from a government that no longer must explain itself before it looks. A suspicion-less dragnet, by its nature, places every citizen in the position of having to justify her movements rather than the state having to justify its surveillance. That is not the posture of a free people — it is the posture of subjects.

I am encouraged, as inference from the Reason account suggests, that this challenge proceeds through the courts of the state rather than waiting upon federal action. The states remain, as I always held them, the most natural guardians of their citizens' liberties against encroachments near at hand. A Kansas court ruling that the state constitution forbids this dragnet would be a healthy exercise of exactly that guardianship. Let the laboratories of self-government produce the jurisprudence that protects the citizen — and let that precedent travel.

The test in every age is simple: would the government that builds this instrument consent to be watched by it in equal measure? Would its officers welcome a public record of every street they drove, every building they entered, every hour they moved? If not — and they would not — then they understand instinctively what they are reluctant to admit in argument: that pervasive surveillance is a tool of power over the watched, not a neutral service to them. The citizen's answer to that asymmetry is the warrant. Demand it.