Wired: Feds Seek Unfettered GPS Surveillance Power

[Winehole23]

The Supreme Court is set to hear historic arguments Tuesday in what perhaps is the most important Fourth Amendment case in a decade — one weighing the collision of privacy, technology and the Constitution.


The question before the justices asks: May the police secretly install a Global Positioning System (http://en.wikipedia.org/wiki/Global_Positioning_System) device on a vehicle without a probable cause warrant issued by a judge in order to track a suspect’s every move?
http://www.wired.com/threatlevel/2011/11/gps-tracking-flourishes/

[FuzzyLumpkins]

I think that the two party systems effect on our selection of the judiciary may be the worst part of all. They are all clearly partisan to the point of absurdity.

[4>0rings]

I bet they already have drones flying around watching people in the states. Generals can't wait till they can order a hellfire on OWS.

[LnGrrrR]

As any regular reader on these forums know, I'm all for civil liberties. That said, I can see a justification for GPS trackers without warrants. The GPS itself doesn't constitute a search, it just makes it easier to track suspects, which cops can do now via various methods such as tailing, stakeouts, etc etc. The GPS tracker/technology just makes those methods easier.

If it can be shown that cops need a warrant to tail, stakeout, etc, then they should need the same for the GPS tracker.

[LnGrrrR]

I don't like the provision whereby they could gather the cellphone records without a warrant, btw.

[Winehole23]

The police have the unfettered right to monitor your movements based on mere suspicion, but may not monitor your calls whatsoever?

[LnGrrrR]

The police have the unfettered right to monitor your movements based on mere suspicion, but may not monitor your calls whatsoever?

I know it sounds silly, but here's my reasoning:

It's not illegal, at the moment, for a police to trail you. You have (AFAIK) no inherent right to the privacy of your own movements, in a legal sense. The main counter to this would be that if a normal citizen tracked you, that would most likely be grounds for arrest (stalking).

Now, when it comes to cell-hone records, they are not a matter of public record. Everyone can see where you are on the street; not everyone can see who you're talking to. As well, I think who you call is more intimate knowledge; especially since they can use said cellphone records to also track your past movement.

Essentially, I'm fine with police using GPS in situations where it would replace following, where it could prevent chases, and other limited uses. Of course, it will probably be abused. However, I think it's less an invasion of privacy than digging through private records.

[Winehole23]

The distinction is sensible, but your observation that the door is opened to police harassment and wholesale surveillance measures also seems apt.

[4>0rings]

without warrants.



NOTHING, NOTHING!!! should be done without a warrant. That is the check to balance corruption. If you don't have enough evidence, then you're not doing your job. There are judges that stand by and approve warrants.

Why is everyone trading security for freedom? Maybe a new group of founding fathers can start another America after this one becomes a police state.

[LnGrrrR]

NOTHING, NOTHING!!! should be done without a warrant. That is the check to balance corruption. If you don't have enough evidence, then you're not doing your job. There are judges that stand by and approve warrants.

Why is everyone trading security for freedom? Maybe a new group of founding fathers can start another America after this one becomes a police state.

A bit hyperbolic. I agree that we should default to warrants in most cases; however, if you force police to get warrants for everything, there's a good chance that they'll just go around the system anyways. Especially in this instance, where they are already using the GPS devices, and there's no legal ruling on this yet. (For instance, I could throw a GPS on someone's car right now. I couldn't demand their cell phone records.)

[boutons_deux]

"they'll just go around the system anyways. "

That would be illegal and victims would have some recourse. With warrants unrequired, no recourse.

Enormous powers are being given to the police, etc, and those powers will be abused, as always, but now the Human-Americans' will not be able to appeal to the law.

[Wild Cobra]

I don't have a problem with the GPS being warrantlessas long as strong probable cause and documented history are in place for every useage. I only fear the tools of law enforcement when they are too easy for a crooked cop to abuse.

[boutons_deux]

I presume no innocence of the police. Too many stories of crooked cops, and
omerta among cops and their supervisors is legendary. I also assume the internal investigations, "policing the police" to be feckless in nearly all cases.

[LnGrrrR]

"they'll just go around the system anyways. "

That would be illegal and victims would have some recourse. With warrants unrequired, no recourse.

Enormous powers are being given to the police, etc, and those powers will be abused, as always, but now the Human-Americans' will not be able to appeal to the law.

That's true enough. I see more benefits to GPS tracking than I do most other violations of civil liberty. YMMV.

[Winehole23]

Convenience for the police isn't everything.

[LnGrrrR]

Convenience for the police isn't everything.

Agreed. But as with any civil liberty, we have to look at tradeoffs. In almost any case, I'll side with the civil liberty. In this case though, I think the tradeoff is worth it, due to the reasons I mentioned above.

Another factor that weighs on me is preventing high-speed chases, which can cause a good deal of loss of life/property. (I know that people could invert that argument and say, "Well terrorism can cause loss of life/property too so why don't you support X..." but in those cases I think the civil liberty being lost is too great a cost.)

[boutons_deux]

At the Supreme Court: Is GPS tracking of suspects too Orwellian?

Big Brother is coming, and there’s no point trying to hide.

Government lawyers argued that there was no difference between the use of the GPS device and the use of earlier beeper technology that allowed agents to track a suspect shipment via a concealed radio transmitter.

The Supreme Court ruled in 1983 that the use of such a device did not violate Fourth Amendment protections because there was no reasonable expectation of privacy in the public movement of a shipment from one place to another.

The appeals court in Jones's GPS case declined to apply the 1983 beeper precedent. The appeals court said GPS surveillance offered more than just an aid to ongoing physical surveillance. It empowered the government to follow Jones 24 hours a day, seven days a week for 28 days. It provided data that allowed agents to identify the totality of Jones’s movements as well as patterns within his day-to-day travels.


http://www.csmonitor.com/USA/Justice/2011/1108/At-the-Supreme-Court-Is-GPS-tracking-of-suspects-too-Orwellian?utm_source=feedburner&utm_medium=feed&utm_campaign=Feed%3A+feeds%2Fcsm+%28Christian+Scie nce+Monitor+|+All+Stories%29

[LnGrrrR]

Government lawyers argued that there was no difference between the use of the GPS device and the use of earlier beeper technology that allowed agents to track a suspect shipment via a concealed radio transmitter.



Poor argument, really. If there was no difference, then why not just use the beeper method? There are obvious improvements in tech when using GPS... that's kinda the point of using it.

[boutons_deux]

SCOTUS observers today said it looks like the warrantless GPS will be allowed. No doubt that other surveillance techniques will be argued under that umbrella.

I suppose PIs can use GPS trackers w/o limitation?

Of course, UCA already collects TBs of data on all of us, from cc/debit purchases, PDAs, etc.

I suppose all telcos do/will do the same:

Verizon Wireless publicly admits selling customers’ personal data

HOUSTON – Verizon Wireless is assuring customers that their privacy won’t be comprised after it became the first mobile phone company to publicly admit that it was selling some of its customers’ personal data to third parties.
The carrier stresses that all of the shared data is anonymous and can’t be traced back to individual consumers.

http://www.khou.com/home/Verizon-Wireless-publicly-admits-selling-customers-personal-data--133043148.html

I think the techonology progresses so fast, and UCA has such power over Congress, and SCOTUS is so pro-institution/anti-citizen activist extremist that we're all pretty much fucked and will be fucked more. George Orwell was right, including "soma", since 10s of Ms of Human-Americans, from cradle to grave, are on psycho-active drugs.

[Winehole23]

Nice roundup of opinions here:

http://gritsforbreakfast.blogspot.com/2011/11/most-scotus-judges-seem-inclined-to.html

[TheProfessor]

NOTHING, NOTHING!!! should be done without a warrant.
So if a suspect flees from police and goes into a house, should the police be required to acquire a warrant? If there's reliable intelligence that a drug dealer is destroying his inventory, should police have to go to a magistrate and wait for a warrant?

There's a reason exceptions have been carved into the warrant requirement. It may lead to abuses, but that's why courts have discretion to suppress evidence and keep law enforcement in check.

[TheProfessor]

I know it sounds silly, but here's my reasoning:

It's not illegal, at the moment, for a police to trail you. You have (AFAIK) no inherent right to the privacy of your own movements, in a legal sense. The main counter to this would be that if a normal citizen tracked you, that would most likely be grounds for arrest (stalking).

Now, when it comes to cell-hone records, they are not a matter of public record. Everyone can see where you are on the street; not everyone can see who you're talking to. As well, I think who you call is more intimate knowledge; especially since they can use said cellphone records to also track your past movement.

Essentially, I'm fine with police using GPS in situations where it would replace following, where it could prevent chases, and other limited uses. Of course, it will probably be abused. However, I think it's less an invasion of privacy than digging through private records.
I think this is a good argument, though I disagree. To me, it comes down to whether you have a reasonable expectation of privacy with regard to your general movement. Though it's not "privacy" in the same way that one has with their home, I think most Americans would feel that police should acquire a warrant before tracking them. The improved technology of tracking devices also weighs in favor of meeting the minimal warrant requirements, particularly when there are no exigent circumstances.

[boutons_deux]

Again, if cops can't attach GPS to a vehicle, can PIs?

[TheProfessor]

Again, if cops can't attach GPS to a vehicle, can PIs?
PIs aren't agents of the state, unless they're acting in conjunction with officers. They may do so in violation of state constitutions or law if a state's exclusionary rule includes private actors (like in Texas).

[Winehole23]

http://www.pcworld.com/article/244654/surrounded_by_surveillance_is_everything_spying_on _you.html

[Winehole23]

The Supreme Court ruled unanimously Monday that law enforcement authorities need a probable-cause warrant from a judge to affix a GPS device to a vehicle and monitor its every move — but the justices did not say that a warrant was needed in all cases.


The decision (http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf) (.pdf) in what is arguably the biggest Fourth Amendment case in the computer age, rejected the Obama administration’s position that attaching a GPS device to a vehicle was not a search. The government had told the high court that it could even affix GPS devices on the vehicles of all members of the Supreme Court, without a warrant.
“We hold that the government’s installation of a GPS device on a target’s vehicle, and its use of that device to monitor the vehicle’s movements, constitutes a ‘search,’” Justice Antonin Scalia wrote, declining to say whether that search required a warrant (http://volokh.com/2012/01/23/what-jones-does-not-hold/).


In a footnote, Scalia added that, “Whatever new methods of investigation may be devised, our task, at a minimum, is to decide whether the action in question would have constituted a ‘search’ within the original meaning of the Fourth Amendment. Where, as here, the government obtains information by physically intruding on a constitutionally protected area, such a search has undoubtedly occurred.”
http://m.wired.com/threatlevel/2012/01/scotus-gps-ruling/

[EVAY]

http://m.wired.com/threatlevel/2012/01/scotus-gps-ruling/

One of the more interesting things about this decision is that Alito and Scalia came down on different sides of the issue, and there were at least three different rationales behind the concurring opinions.

[Winehole23]

the decision: http://online.wsj.com/article/SB10001424052970203806504577178811800873358.html#p roject%3DWSJPDF%26s%3Ddocid%253D120123181820-a0965f137c134445a40453c7d622496b%257Cfile%253Dscot us11-opinion-usjones0123%26articleTabs%3Ddocument

[cheguevara]

How this was not a unanimous decision is alarming and disgusting

"The powers not delegated to the United States by the Constitution, nor
prohibited by it to the States, are reserved to the States respectively,
or to the people."

[Winehole23]

Here is the upshot. Five Justices join the holding of the “majority” opinion (per Scalia) that by attaching and monitoring a GPS device the police conduct a “search”; four Justices (those in the Alito concurrence) reject that view. Five Justices join or express their agreement with the portion of the “Alito” opinion concluding that the long-term monitoring of a GPS device violates a reasonable expectation of privacy; four Justices (those in the majority, minus Sotomayor) leave that question open.

That alignment of Justices importantly leaves two questions unanswered. First, does the “search” caused by installing a GPS device require a warrant? The answer may be no, given that no member of the Court squarely concludes it does and four members of the Court (those who join the Alito concurrence) do not believe it constitutes a search at all.


Second, assuming no warrant is required for installation, is a warrant required for short-term monitoring of the GPS device? Again, the answer may be no, as the majority conspicuously avoids addressing this issue and four members of the Court (again, those who join the Alito concurrence) squarely say that the answer is “no” (Alito op. at 13). Justice Sotomayor alone says that this scenario “will require particular attention.”


Note that the government has to prevail on both of those later questions. (If a warrant is required to install the device in the first place, then whether it could be monitored for a short time without a warrant is essentially an academic question.) But I think that there is an excellent chance that it will do so.


The real fight is over the first question of the installation. Only one member of today’s majority has to adopt the view that the “search” of installing the GPS is sufficiently minor to not require a warrant. Whether that happens will depend on whether every member of today’s majority is willing to extend the reinvigoration of a property-rights model of Fourth Amendment privacy to also require a vigorous application of the warrant requirement. Justice Sotomayor is, and I expect Justice Scalia agrees. The others are an open question. If no warrant is required, then it seems quite likely that one member of the majority (which is composed of conservative members of the Court) would join the four Justices in Alito’s concurrence to hold that short-term monitoring is not a search at all.


As a result, I think that although the government lost Jones 9-0, it did far better than everyone has recognized so far. I believe that it is more likely than not to prevail in a later case in which it installs a GPS monitor without a warrant and tracks the individual for only a couple of days.


http://www.scotusblog.com/2012/01/reactions-to-jones-v-united-states-the-government-fared-much-better-than-everyone-realizes/#more-137698

[Winehole23]

more great stuff on Jones at scotusblog:

http://www.scotusblog.com/2012/01/why-jones-is-still-less-of-a-pro-privacy-decision-than-most-thought/

via Volokh (http://volokh.com/)

[Winehole23]

The Supreme Court’s recent ruling overturning the warrantless use of GPS tracking devices has caused a “sea change” inside the U.S. Justice Department, according to FBI General Counsel Andrew Weissmann.


Mr. Weissmann, speaking at a University of San Francisco conference called “Big Brother in the 21st Century” on Friday, said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use.


These devices were often stuck underneath cars to track the movements of the car owners. In U.S. v. Jones, the Supreme Court ruled that using a device to track a car owner without a search warrant violated the law.


After the ruling, the FBI had a problem collecting the devices that it had turned off, Mr. Weissmann said. In some cases, he said, the FBI sought court orders to obtain permission to turn the devices on briefly – only in order to locate and retrieve them.
http://blogs.wsj.com/digits/2012/02/25/fbi-turns-off-thousands-of-gps-devices-after-supreme-court-ruling/

[The Reckoning]

3000 devices?

good thing i dont drive...

[boutons_deux]

"prompted the FBI to turn off about 3,000 GPS tracking devices that were in use."

Willard Gecko's $10,000 says the FBI didn't turn them (all) off.

They don't obey the law, they enforce the law on others.

[Wild Cobra]

"prompted the FBI to turn off about 3,000 GPS tracking devices that were in use."

Willard Gecko's $10,000 says the FBI didn't turn them (all) off.

They don't obey the law, they enforce the law on others.
Who watches the Watchers?

[Winehole23]

A federal judge in Iowa has ruled that evidence gathered through the warrantless use of covert GPS vehicle trackers can be used to prosecute a suspected drug trafficker, despite a Supreme Court decision this year that found such tracking unconstitutional without a warrant.

U.S. District Judge Mark Bennett in Sioux City ruled last week (http://www.wired.com/images_blogs/threatlevel/2012/04/Amaya-ruling.pdf) (.pdf) that the GPS tracking evidence gathered by federal DEA agents last year against suspected drug trafficker Angel Amaya, prior to the Supreme Court ruling, can be submitted in court because the agents were acting in good faith at the time. The agents, the judge said, were relying on what was then a binding 8th U.S. Circuit Court of Appeals precedent that authorized the use of warrantless GPS trackers for surveillance in Iowa and six other states.

It’s the third of such “good faith” rulings by federal court judges in the wake of the recent and historic Supreme Court decision, all of which illustrate that the Supreme Court ruling can be easily skirted by law enforcement agents and prosecutors who work in circuit court regions where it was previously legal to use the devices without a warrant.

Legal experts say the “good faith” exception, which comes out of another court ruling last year, has created a mess of the Supreme Court’s GPS decision.

“[I]t is a bit of an end-run around for law enforcement,” says Hanni Fakhoury, staff attorney for the Electronic Frontier Foundation. “And it leads to disparate results because whether [GPS evidence] gets suppressed or not depends on what the law of the circuit was prior to Jones.”
http://www.wired.com/threatlevel/2012/04/dea-use-of-gps-tracker/

[ElNono]

^ the good news is that there's an expiration date for that

[Winehole23]

for self serving expeditiousness? One would hope so.