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Noah Feldman

Protecting Children Vs. Protecting Privacy

A cost-benefit analysis isn't the best way to decide whether a sex offender has to wear a GPS tracker.
Every step you take, we'll be watching you.

Every step you take, we'll be watching you.

Photographer: Andrew Burton/Getty Images

Can Wisconsin make a sex offender who’s completed his sentence wear a GPS monitor on his ankle for the rest of his life? Reversing a lower court judgment last week, the U.S. Court of Appeals for the 7th Circuit said the answer is yes. The opinion, by the influential Judge Richard Posner, presents itself as an exercise in cost-benefit analysis and legal common sense. But the decision is wrong nonetheless, because the right to privacy can’t be balanced away by statistics.

In the 1990s, Michael Belleau was convicted two separate times for sexually assaulting children. When his term for the second conviction ended in 2005, he wasn’t released. Instead, the state had him civilly committed as a danger to others because of a propensity to abuse children. (This practice may seem like an illegal extension of a defendant’s criminal sentence, but the U.S. Supreme Court has ruled that post-sentence civil regulation of sex offenders is constitutional, because it’s for prevention and not punishment.)