For this year’s Law and the Multiverse’s Christmas post, we’re going to be taking a quick look at Batman: Noel, the graphic novel written and illustrated by Lee Bermejo that came out last month. It’s a sort-of retelling of Charles’ Dickens A Christmas Carol with Batman as Scrooge and various other characters as the ghosts of Christmas Past, Present, and Future. Well, maybe more like Batman’s Past, Present and Future. But it’s set on Christmas Eve, so hey. There you go. The main thing we’re going to be taking a look at is the legality of using wireless tracking devices without a warrant.
The story features a character named, appropriately enough, Bob Cratchit. It’s not exactly clear what Bob Cratchit’s employment situation is, but the narration strongly implies that Cratchit works his day job for Batman, but never actually says as much, and it’s also possible that “working” for “Scrooge” refers to Batman sort of shanghai-ing Cratchit into acting as bait for the Joker. Or it could be that Cratchit works for the Joker. The story is kind of ambiguous.
Anyhow, the Joker has escaped from Arkham Asylum. Again. Batman has a lead that there’s going to be a drop, and catches Bob Cratchit picking up a package for the Joker. All Bob knows is that he’s found a letter telling him to pick up a package at the corner of Washington and Fifth. He does so, and Batman drops out of the sky, demanding to know where the Joker is. Bob doesn’t know, of course, so Batman lets him go, but not before tagging Cratchit with a tracer, hoping that Cratchit will lead him back to the Joker.
That’s probably not okay. The way this story is written, Batman has a pretty close working relationship with Commissioner Gordon. The two appear to share information as a matter of course, and it seems that Gordon is more-or-less explicitly relying upon Batman to bring in the Joker. This likely makes Batman a state actor for constitutional purposes. This may be a problem, because Batman tags him with a wireless tracking device without Cratchit’s knowledge or consent. The Supreme Court actually heard oral arguments on November 8, 2011 in U.S. v. Jones which addresses a very similar issue (warrantless tracking of vehicles). The Court has yet to issue a ruling, but signs point to this kind of thing being unconstitutional. The Justices seem likely to say that while there isn’t necessarily a reasonable expectation of privacy in one’s movements in public places, the police still can’t directly track your movements without either your consent or a warrant. The FBI and other law enforcement agencies are currently doing this by tracking GPS-equipped cell phones and planting GPS tracers on vehicles, and the challenges to these practices have finally worked their way through the system to the Supreme Court.
On one hand, there really isn’t anything from preventing the cops from following you around all the time. With or without probable cause, simply having an officer tail you 24 hours a day doesn’t necessarily violate your constitutional rights, especially if the officer doesn’t follow you on to private property. What, then is the difference between doing that and planting a GPS tracker? Well, in oral arguments, the Justices seemed concerned that GPS technology lets the cops do this pretty much at will with a minimum of effort or oversight rather than actually having to put in the legwork. The basic idea seems to be that while GPS doesn’t actually expose anything that wasn’t already available to anyone who wanted to watch, this lets the cops keep tabs on you without actually having to watch. The prosecution is relying on a thirty-year old case about trackers on cars, but technology has changed so dramatically that the Justices seem to be worried about further changes which might permit even more intrusive surveillance. The difference between agents on the scene being able to follow a car semi-remotely versus being able to check a database once a month to see every single place you’ve been in that last month seems pretty significant. In the former case, the cops are simply using technology to gather information about someone they already suspect of a crime. In the latter, it’s entirely plausible that the cops might suspect someone of a crime, and even potentially first suspect that a crime has been committed at all, based on the information gained in their surveillance dragnets.
That seems sort of intuitively incompatible with the way we tend to think about the Fourth Amendment. If the cops are already on to you, they can basically keep coming after you using whatever means are at their disposal. But they aren’t allowed to go on fishing trips just for the heck of it.
An opinion isn’t due until the spring, so we’ll revisit this when Jones is decided.
Oh, and one other thing: the rather unpleasant work environment described early in the story—Bob apparently had to really push to get Christmas Day off of work—may actually be okay. Just because Christmas Day is a federal holiday (and on a Sunday this year) doesn’t mean that employees actually have a right to the day off. The federal government doesn’t actually have the authority to prescribe national days off, and the fact that employers all seem to go along with certain federal holidays is a matter of practice and convenience, not law. Health care employees, for example, have to fight over which holidays they get off, since closing a hospital isn’t really an option, and frequently have to trade with people to get a schedule they want. And many employers completely ignore certain holidays, like Columbus Day or President’s Day. Legally speaking, Christmas is no different. So while whoever Bob’s employer is certainly looks like a Scrooge, he isn’t breaking any employment laws there.
That’s about all for this one. We hope you all enjoyed your holiday!