Judge Throws Out Lawsuit From Redditor Who Found An FBI Tracking Device On His Car

from the upvote-for-FBI-visit dept

Thu, May 7th 2015 4:09am — Tim Cushing

Back in 2010, Redditor Yasir Afifi found an unusual device on his car while taking it in for an oil change.

Other Redditors surmised it was some sort of tracking device -- something that was confirmed a few days later when two SUVs full of cops and FBI agents showed up to reclaim it. While doing so, the FBI agent also asked the sort of probing questions that make the agency an indispensable part of our nation's counterterrorism efforts. From the ruling by Judge Beryl Howell:

The agents also asked the plaintiff other questions, including “whether he was a national security threat, whether he was having financial difficulties, [and] whether he had been to Yemen . . . .”

They also said other, more unsettling things:

After returning the GPS device, defendant Kanaan made several comments to the plaintiff that indicated to the plaintiff that the FBI had knowledge of the plaintiff’s movements, including commenting on certain restaurants at which the plaintiff ate, a friend with whom he associated, and a new job at which he worked. Id. at ¶ 46. At the end of the encounter, the plaintiff alleges that defendant Kanaan suggested to him that he was not a national security threat and that he was no longer of use to the FBI.

Apparently, part of the justification for deploying this tracking device was a comment one of Afifi's friends had left at Reddit -- a comment that skewers a lot of unproductive terrorism hysteria (and the agencies that thrive in this atmosphere).

bombing a mall seems so easy to do. i mean all you really need is a bomb, a regular outfit so you arent the crazy guy in a trench coat trying to blow up a mall and a shopping bag. i mean if terrorism were actually a legitimate threat, think about how many fucking malls would have blown up already.. you can put a bag in a million different places, there would be no way to foresee the next target, and really no way to prevent it unless CTU gets some intel at the last minute in which case every city but LA is fucked...so...yea...now i'm surely bugged : /

End result? A tracking device on Afifi's car, and for something he didn't even write. So, he sued the FBI and the DOJ for violating his First, Fourth and Fifth Amendment rights. The suit was stayed by the court while the Supreme Court sorted out US v. Jones -- a case dealing with warrantless GPS tracking. Unfortunately, the Court returned not much in the way of a decision, stating that GPS tracking did constitute a "search," but didn't go so far as to add a warrant requirement, suggesting the longer the tracking lasts, the worse it is constitutionally.

Whether or not this was warrantless surveillance isn't answered in Howell's decision. None of Afifi's claims survive. Qualified immunity nullifies Afifi's First and Fourth Amendment Bivens claims with an assist from the circuit courts' split on warrantless GPS tracking. As the events in question took place nearly two years ahead of the Supreme Court's decision, Howell defers to the rulings in place at that time (2010) as governing the agents' actions.

[T]he warrantless use of a GPS device was lawful under Ninth Circuit precedent at the time of its use in the present case. In other words, the individual defendants’ warrantless use of the GPS device was valid in California, the jurisdiction in which the individual defendants used the GPS device.

Afifi's First Amendment claim also goes down, seeing as there's no judicial precedent for chilling speech with a GPS tracker.

The plaintiff has failed to cite a single case from any Circuit holding that the warrantless use of a GPS device violates an individual’s First Amendment rights. To be sure, the qualified immunity analysis does not require a “case directly on point,” Al-Kidd, 131 S.Ct. at 2083, but a court must take caution in properly defining the scope of the right violated (“We have repeatedly told courts . . . not to define clearly established law at a high level of generality.”). [...] The plaintiff’s inability to cite a single case in support of his contention that the warrantless use of a GPS device violated his First Amendment rights dooms his claim.

Afifi's claim of Privacy Act violations caused by the FBI's continued retention of his case records after closing the investigation doesn't fare any better. There's plenty of precedent out there stating that relevant investigative records are forever even if the investigation isn't.

In addition, the fact that the investigation into the plaintiff is now closed does not render the records invalid under Section (e)(7). The D.C. Circuit has held that an agency may maintain records from an authorized investigation even after that investigation was closed, because “[m]aterials may continue to be relevant to a law enforcement activity long after a particular investigation undertaken pursuant to that activity has been closed...”

The present case is no different. The records now in the FBI’s possession may permit the FBI to verify or evaluate any new intelligence received, assess the reliability of other sources, and ensure accountability regarding how the FBI responded to the information it received.

Howell also points out that challenges to warrantless searches generally result in suppression of evidence, not nullification of entire investigations. Afifi's claims that he is being locked out by potential employers because of his run-in with the FBI are dismissed as "self-inflicted" -- not because Afifi had the misfortune of being acquainted with a person whose Reddit comment drew FBI heat, but because he "reported his confrontation with the FBI agents to local and national media, and the media published numerous stories about the encounter."

The moral of this tale seems to be that if you discover a tracking device on your vehicle, there's no faster way to be rid of it than posting pictures of it on a heavily-trafficked website. (As opposed to, say, throwing it in a lake, as one commenter suggested.) You may not find relief through the courts, but at least you'll be ensured of some form of closure.

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Filed Under: beryl howell, cars, doj, fbi, fifth amendment, first amendment, fourth amendment, gps, privacy, surveillance, tracking, tracking device, yasir afifi

72 Comments

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andy, 7 May 2015 @ 4:25am

Hmmm
Hopefully more judges find their cars with gps devices attached and done by concerned citizens with no warrant as none is needed. Remember there are judges who have been found guilty of rulings just so they can make money from kickbacks from prisons.

And saying that we should also be allowed to monitor the movement of every police car for similar reasons, and post the data to the internet so everyone knows where the police are cruising and who they are in contact with.

In fact this ruling makes it very clear that the judges are not immune from their movements being monitored or those they communicate with monitored.

What is good for law enforcement is also good for the citizens as they should be able to do the same if no warrant is needed.

I wonder how this Judge will feel knowing that anyone can monitor his car movements with no restrictions.
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Bt Garner (profile), 7 May 2015 @ 4:27am

I wonder if the ACLU (or any others) would be willing to take on a pro bono civil case against the FBI for this.
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Anonymous Coward, 7 May 2015 @ 4:40am

bombing a mall seems so easy to do. i mean all you really need is a bomb, a regular outfit so you arent the crazy guy in a trench coat trying to blow up a mall and a shopping bag. i mean if terrorism were actually a legitimate threat, think about how many fucking malls would have blown up already..

Shoot the messenger and everybody associated with them has becomes standard practice whenever someone calls out the government, also it gives the FBI a soft target to add to their stats of dangerous people that they have under surveillance.
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Anonymous Coward, 7 May 2015 @ 4:44am

GPS Tracker
Should have just dropped the tracker in the trash at the oil change place and left. Then the FBI could have collected it themselves.
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That One Guy (profile), 7 May 2015 @ 4:47am

'Fourth Amendment, what's that?'
Unfortunately, the Court returned not much in the way of a decision, stating that GPS tracking did constitute a "search," but didn't go so far as to add a warrant requirement, suggesting the longer the tracking lasts, the worse it is constitutionally.

Pretty much the entire point of the Fourth Amendment is to require warrants for any searches, so the fact that they ruled GPS tracking a 'search', but didn't follow through on the logical conclusion, that of needing a warrant to perform said search, makes the Fourth with regards to GPS tracking completely useless.

If they can perform searches without warrants, at that point the judges might as well be honest enough to admit that they don't care at all what the Fourth, or any of the amendments say, if it happens to get in the way of the government of police doing whatever they want.
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Anonymous Coward, 7 May 2015 @ 4:48am

"Judge Beryl Howell"

Who opens her arms wide open to welcome copyright trolls, enough said.
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MadAsASnake (profile), 7 May 2015 @ 5:08am

Why not just quietly attach it to, say, a police car? As the FBI would be unlikely to know when it was swapped, all their data would become suspect. The FBI would have difficulty doing anything about it without revealing what they were doing.
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Anonymous Coward, 7 May 2015 @ 5:13am

he was just unlucky to have Howell on the bench. i suppose the only good thing was that this wasn't a copyright case. given her former employment, he would have been banged up for 3 or more years and fined a gazillion amount, probably, for stealing a copyrighted tracker and running around with it on his car!!
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MadAsASnake (profile), 7 May 2015 @ 5:18am

Re: GPS Tracker
Maybe he should have put it on eBay instead.
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Prashanth (profile), 7 May 2015 @ 5:22am

Appeal
Is there any possibility of an appeal? (I am not a lawyer, which is why I ask.)
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Anonymous Coward, 7 May 2015 @ 5:34am

Kanaan suggested to him that he was not a national security threat and that he was no longer of use to the FBI.

We've all heard the stories about how the FBI tries to force people into spying for them with bullshit threats. That line in conjunction with the story about what his friend said suggests the FBI was looking for leverage they could use to force this guy into becoming an informant.

But once he went public with the story, any so-called terrorist would never trust him. Thus making him of no possible use. The lesson I am taking away from this is that if you find out the secret police is targeting you, do everything you can to make sure it is not a secret. It might reduce your employment chances in the future, but it sounds like it will also reduce your chances of becoming a toy for heartless bullies hiding behind badges.
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Ragnarredbeard, 7 May 2015 @ 5:48am

Should have told them to pound sand
Oh, you planted a device on my car and want it back? Nope. Mine now, just like if you had put a garage sale flyer under my windshield wiper.

Oh, you're the FBI? Still my device under the Finders Keepers Act, but if you really want it back you'll need to go get it since its already on the way to Mongolia in a fedex truck.
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MadAsASnake (profile), 7 May 2015 @ 6:01am

As often in these cases, I keep asking the following question:

Why didn't they get a warrant?

There were plainly no exigent circumstances.
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Anonymous Coward, 7 May 2015 @ 6:04am

Re:
Easy. Because they also had no probable cause.
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Anonymous Coward, 7 May 2015 @ 6:05am

Re: Re: GPS Tracker
Better yet, send it FedEx to Yemen.
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Anonymous Coward, 7 May 2015 @ 6:10am

He was around someone who talked out against the Terrorism indurstry, what did he expect? If he wasnt an American he would have been droned together with his family and pets.
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Anonymous Coward, 7 May 2015 @ 6:12am

Re: 'Fourth Amendment, what's that?'
Funny how those who routinely spout "get tough on crime" and "just follow the constitution" also lament holding LEOs, CEOs and politicians to the same standards as everyone else. I do not recall anything in the constitution that addresses this two tiered system, did I miss something?
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Anonymous Coward, 7 May 2015 @ 6:13am

I'm sorry Mr FBI guy but there's only one way I'll return this device!, It'll be a little uncomfortable so you may want to lube up.
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MadAsASnake (profile), 7 May 2015 @ 6:14am

Re: Re:
Uh - yeah... so what was the device doing on his car? It is a shame that this case fell in front of a judge with a demonstrated lack of critical thinking and a demonstrated will to find for any plaintiff.
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Anonymous Coward, 7 May 2015 @ 6:18am

Re:
Because they were too lazy to do their jobs.
These are the same people who wag their fingers at low wage workers telling them it is their own fault they have a shit job and they should just work harder in order to pay the bills, the tickets and the fines.
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DigDug, 7 May 2015 @ 6:19am

I'm sorry, but "WHAT???"
Congress may pass NO law...

That means there is NO way any law could be passed that places the needs of any Government agency above these rights.

The fact that this judge decided to go this route means that the Judge doesn't know the law and should be debenched and arrested for violating those rights.
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Molexo, 7 May 2015 @ 6:19am

Is appealing an option? Perhaps with a competent lawyer?
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Anonymous Coward, 7 May 2015 @ 6:21am

Re:
Victim blaming.

So he should not talk about those types of things because it only attracts undesirable people.
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Guardian, 7 May 2015 @ 6:22am

this judge needs to get bugged
lets all find sneaky ways ot bug the judge
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got_runs? (profile), 7 May 2015 @ 6:32am

Who would have thought a Federal Judge would support federal spying.
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ishould (profile), 7 May 2015 @ 6:42am

As opposed to, say, throwing it in a lake, as one commenter suggested.

They'd probably arrest you for destruction of federal property then
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Molexo, 7 May 2015 @ 6:50am

Gotta say, this shit is demoralizing. Will we ever get any wins for privacy?
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HMTKSteve, 7 May 2015 @ 6:51am

possession is 9/10 of the law
Once the device was attached to his vehicle (without consent) wouldn't it now belong to him?

What if he found it and destroyed it? Would he then be in trouble for interfering with an FBI investigation?
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OldMugwump (profile), 7 May 2015 @ 6:53am

As a matter of law...
Legally speaking, if I find a thing like this on my car, can I treat it at as found (abandoned) property, or a gift?

Can I sell it, give it away or destroy it?

Anybody know?
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STJ, 7 May 2015 @ 7:00am

Re: GPS Tracker
Na, put it on a semi truck and see how far they chase it.
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STJ, 7 May 2015 @ 7:01am

Re:
Because... terrorism!!
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Mason Wheeler (profile), 7 May 2015 @ 7:05am

Re:
If I was an FBI agent I'd know exactly when it was swapped, to within a pretty tight tolerance: it happened the day the device left the suspect's home but returned home somewhere else that night.
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Anonymous Coward, 7 May 2015 @ 7:07am

It's good to know your rights no longer matter when the criminals in charge decide their rights are more important than yours
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Anonymous Coward, 7 May 2015 @ 7:10am

Judicial cowardice
> The plaintiff’s inability to cite a single case in support of his contention that the warrantless use of a GPS device violated his First Amendment rights dooms his claim.

"If you want justice, you're going to have to run this through the appeals court. I'm not touching it without precedent established."
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Irving, 7 May 2015 @ 7:13am

The courts and the FBI are part of the same overall organization. Of course one is not going to impede the operations of the other.
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PRMan, 7 May 2015 @ 7:18am

Re: GPS Tracker
Next time send it anonymously to iFixit so we can all get a detailed list of what's in there.
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AEF, 7 May 2015 @ 7:26am

I'd strongly suggest that if you see something like that ( that looks exactly like a bomb ) attached to your car, you should get far away from it and call 911. Sooner or later at least they will make better looking ones that do not look like a bomb. Point being, something that looks like a bomb really is not a joke to become acceptable to have attached to cars. Sooner or later there will be a real bomb somewhere and somebody will think it is just an FBI tracker.
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Anonymous Coward, 7 May 2015 @ 7:29am

Re:
Because FYTW.
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Anonymous Coward, 7 May 2015 @ 7:33am

Re:
Why bother? Every time they skip it, the resulting suit:

1. establishes precedent that it's not necessary
2. exonerates their conduct
3. doesn't cost them a dime

Align the incentives and you get emergent behaviour.
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Anonymous Coward, 7 May 2015 @ 7:34am

Re: GPS Tracker
Nah, he should have attached it to some government vehicle like a police car.

Well maybe not that might only result in the arrest of some innocent immigrant doughnut shop owner......
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John Fenderson (profile), 7 May 2015 @ 7:35am

Re: GPS Tracker
Nah, he should have put it up on eBay for sale. The FBI clearly gave it to him as a gift, so he might as well get a little cash from it.
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psiuuuu, 7 May 2015 @ 7:38am

We DO need a new drainfield
Bet I could get the FBI to go dig things up for me with a careful "deposit".
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Anonymous Coward, 7 May 2015 @ 7:39am

Re: I'm sorry, but "WHAT???"
Yes, sad isn't it?

You will not find enough citizens that give two shits enough to actually participate enough to do anything.

Now we just have to wait long enough for it to get bad enough to rebel.
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Anonymous Coward, 7 May 2015 @ 7:52am

Re:
Considering how much of a fetish Whatever has for both Prenda and the NSA, that's... chillingly accurate.
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Spaceman Spiff (profile), 7 May 2015 @ 8:31am

Why give it back?
The feds put it on his car. He found it. It is his. At the least, he should have run over it a few times before giving the pieces back to them...
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John Fenderson (profile), 7 May 2015 @ 9:14am

Re: As a matter of law...
Unfortunately, my google-fu is not strong enough to overcome my lack of legal education, so I'd love to hear an attorney's comment on this.

However, my layman perspective is that this is clearly abandoned property. The various definitions of "abandoned property" seem to generally support this. I don't know if the device had a label indicating ownership (I assume not), and that may factor into it.

However, the police voluntarily gave up physical possession of the device without entering into an agreement with the person they gave physical possession to. That seems like abandonment to me. Or, failing that, it seems like a gift. They gave the device to the owner of the car.
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Ninja (profile), 7 May 2015 @ 9:35am

Re: Why give it back?
I'd fly to the middle of nowhere and drop it there. Then when asked to give it back say "FETCH".

We'd probably laugh a lot and I'd be thoroughly lynched by a bunch of FBI thugs.
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x, 7 May 2015 @ 10:24am

Re: GPS Tracker
No. Best thing to do is toss it into a boxcar of a train that happens to be driving by. Or...send it by mail to some other country.

Like Yemen.

:-D
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MarcAnthony (profile), 7 May 2015 @ 10:31am

Re: Judicial cowardice
I agree. It really isn’t sufficient for a court to say that a plaintiff’s rights haven’t been trampled just because he can’’t cite precedent. Some things are, literally, unprecedented. It’s still the judge’s job to make a fair decision based on the facts and the spirit of the law.
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Anonymous Coward, 7 May 2015 @ 10:41am

Re: As a matter of law...
I too would love a lawyer's comment on this question. I have a sneaking suspicion that the FBI would find some way of going after you for taking "their" stuff, whatever common sense (or even the law!) says.
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Anonymous Coward, 7 May 2015 @ 11:40am

Re: As a matter of law...
A more interesting question: what if someone else (say, your mechanic) found a thing like that on your car, and threw it in the trash without your knowledge, disconnecting the batteries (so it won't transmit its location)?
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JBDragon (profile), 7 May 2015 @ 12:41pm

Re: I'm sorry, but "WHAT???"
A lot of judges don't know the law. They're activist judges, which is why this country is going int the crapper!!! Why we have a President that can completely ignore Congress because has has a Pen and a Phone!!! They don't do what HE wants, oh well, do it anyway. That's part of the checks and balances. We now have a Dictator, not a President. A President can only sign a bill or Veto a bill given to him by congress, not create his own bills and laws how he see's fit. We have a Federal Government that's taken over a whole lot of State rights. At this point in time, why do we even have Local and State Governments. So many people these days think the Federal Government is suppose to do everything. When congress calls in Baseball players for Steroids, that's a huge issue. What the F does the Federal Government and Congress have anything once so ever to do with that??? Baseball is run by a Private business, Privately owned. If the drugs are illegal, then the Local and state Police can do their stings or whatever. If not and just against the rules of playing the game. The baseball commission can deal with it as they see fit. Not the F'in Federal Government. Baseball is not a national security issue!!!
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John Fenderson (profile), 7 May 2015 @ 12:43pm

Re: Re: As a matter of law...
I think that's a less interesting question, since that someone else would be breaking obvious laws. Such a person has no legal claim of possession of the thing and doesn't have your permission to remove or dispose of it.
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JBDragon (profile), 7 May 2015 @ 12:45pm

Re: Re: As a matter of law...
They also put it on without a Warrant!!! It's on your car. Doesn't say the property of the FBI or something like that on it, I'd toss it into say the street drain. if anything you can say it must of fell off your car and ended up in the drain.
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Jim Strathmeyer, 7 May 2015 @ 1:14pm

Re: Hmmm
Andy, you're half way there. The correct thing to do when you find a tracking device on your car is to attach it to the car of the nearest judge. Should clear things up real quick in America.
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Anonymous Coward, 7 May 2015 @ 4:42pm

The land of the enslaved.
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Anonymous Coward, 7 May 2015 @ 5:36pm

Re: Re: I'm sorry, but "WHAT???"
I am getting sick of this shit ...
so - ok, I gotta ask.
What, exactly, is an activist judge?

Is it someone who does not rule in the way you would prefer?
Is it someone who goes against all prior precedence?
Is it someone who is arbitrary and capricious?
wtf is it?

Here is a clue for you... the POTUS is been given authority to write executive orders via the Constitution and prior actions of Congress. - DUH - you are an ignorant poser.

The people do not think the government should do everything, what kind of bullshit statement is that?

Bayze-a-ball bin belly belly goood to me - wtf does baseball have to do with the BS you spouted?
This country is not in the crapper. The constant bullshit machine is working hard at bullshit mountain and the crapper is backed up - it does not work.
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Anonymous Coward, 7 May 2015 @ 7:34pm

Re: GPS Tracker
He should have just claimed it as his property, and demanded that the authorities take him to court and sue for it's return. Then instead of suing the government over the tracking there would have been a media circus as the government tried to get US citizen to handover a piece of tech that they had no paperwork for...
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Anonymous Coward, 7 May 2015 @ 8:18pm

Money making opportunity
Sell the device on eBay.
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Anonymous Coward, 8 May 2015 @ 1:03am

Re: Re: Re: GPS Tracker
Quick, after him! He's driving to Yemen!
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Anonymous Coward, 8 May 2015 @ 4:16am

No good way to dispose of one
(Depends if the tracker sends it's location to the handler or only stores it for later retrieval)

Placing it in/on another car, might be good for you but the other driver could be serioulsy forked by this.
An investigation into him or if he drives "suspicously" and the big t-word on the FBIs mindset could warrant a nice preventative, extrajudicial killing for you and the driver.
"He is driving closeby to a powerstation, bring him in or deliver some 'justice' and then bring him in"

Sending it to Yemen may be even worse.

Sending it to another government agency may irk other agents.
Notwithstanding someone spouting "official-secret-technologies" and tampering with these.
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hardware guy, 8 May 2015 @ 4:44am

next time
next time please send it to a public surgeon like ifixit or nsaplayset.org
motherboard.vice.com/read/michael-ossmann-and-the-nsa-playset

do not ever give it back without tinkering with it
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Just Another Anonymous Troll, 8 May 2015 @ 5:23am

Re: Re:
sar·casm
ˈsärˌkazəm/
noun
the use of irony to mock or convey contempt.
"his voice, hardened by sarcasm, could not hide his resentment"
synonyms: derision, mockery, ridicule, scorn, sneering, scoffing; More
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Jason K, 8 May 2015 @ 7:13am

Re: GPS Tracker
Or put it on another car.
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nasch (profile), 8 May 2015 @ 7:51am

Re: Should have told them to pound sand
Still my device under the Finders Keepers Act, but if you really want it back you'll need to go get it since its already on the way to Mongolia in a fedex truck.

If it had been on its way to Mongolia they wouldn't have shown up at his house asking for it.
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nasch (profile), 8 May 2015 @ 7:54am

Re: Re: As a matter of law...
I'm sure the FBI would find a law that makes it a crime for you to destroy the property they freely gave to you by putting it on your car.
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nasch (profile), 8 May 2015 @ 8:00am

Re: No good way to dispose of one
Just throw it in a public trash can. Ideally right before trash collection so the FBI has to get it out of the dump if they want it back.
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Anonymous Coward, 8 May 2015 @ 8:59am

...best to earn some AdSense cash by posting a teardown on YouTube.
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That Anonymous Coward (profile), 8 May 2015 @ 4:35pm

One can only hope they appeal, and the appeals court once again reminds her that she has to follow the actual law and not her own imagination of what the law should be.
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Anonymous Coward, 8 May 2015 @ 6:48pm

Re: Re:
That is why you are not an FBI agent.
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guy, 2 Apr 2016 @ 6:49am

precedents?
How are precedents created?

This is a sarcastic rhetorical question.
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Paul Kersey, 28 Sep 2016 @ 7:36am

America is finished. Guess what? They do this ALL the time.
They'll follow you if you're innocent. They'll follow you around. They'll track you.
And there's nothing you can do about it.

It's not just middle eastern people they pick on.
Government picks on black communities and everyone with a drug history. EVERYONE.

My friend beat 3 drug cases. His wife accused him of being a drug dealer. This guy did not deal drugs.
Still, the police-
hacked into his car ( via wireless tire pressure monitoring system )
put cameras in his car ( the side mirror )
hacked into his phone
hacked into his email
and had street teams of people follow him all over.

They even booby trapped his home and later his apartment.
There's anti-drug technology and heavy surveillance on known drug users.

Sounds paranoid right? Nope. Saw it happen.

He lived in the ghetto and found that:
Police were dealing drugs ( and got caught! It made the news )
Prostitutes he'd buy from were DEA snitches who were paid in drugs
Police were sleeping/doing drugs with prostitutes
The DEA intercepts batches of drugs and poisons them.
Even the town mayor was sleeping with prostitutes!

He discovered that the ghetto is basically used to CONTAIN drugs. They don't want the drugs leaving the ghetto. They don't want the drugs going into the nicer neighborhoods. Therefore, they just pump drugs into lower income areas and use addicts as informants.

Yet, government spent thousands of tax payer dollars following this guy around just because his vindictive wife accused him of dealing drugs.

Here's some sources:
DEA agents paid man with Crack, Lawsuit says
Huffington Post 7/16/2014 by Sara Bondioli
Key Figures In CIA Crack Cocaine Scandal Begin To Come Forward
Huffington Post 10/2014 Ryan Grim
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