FBI Turns Back On 2,750 Of The 3,000 GPS Devices It Turned Off For Lack Of A Warrant

from the spy-spy-spy-away dept

In January, we wrote about the Supreme Court's somewhat surprising ruling on GPS monitoring by law enforcement, in which it suggested (but didn't fully say) that putting a GPS device on a car might need a warrant -- a pretty easy process that the FBI just didn't want to go through. Following this, we noted a report saying that the FBI scrambled to turn off 3,000 such devices that had been placed without a warrant.

However, in an NPR report about just how unhappy the FBI is about all of this, it notes that the FBI actually scrambled to file for warrants on most of those 3,000 devices, such that only 250 were permanently shut off. And yet it's still complaining about this whole "getting a warrant" thing. As Tim Lee notes, FBI director Robert Mueller is basically complaining to Congress that it's just so hard:

In Congressional testimony last month, FBI Director Robert Meuller said the ruling "will inhibit our ability" to do GPS tracking "in a number of surveillances where it has been tremendously beneficial." Mueller said that in cases where they didn't have probable cause, the FBI is forced to deploy teams of six to eight people to track suspects the old-fashioned way.

"If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR.

But, uh, isn't that why we require a warrant? It's supposed to be hard to spy on people. That's kind of one of the key principles of the Constitution. Again, as Lee notes:

Of course, that's kind of the point. Law enforcement's job would be a lot easier if we just did away with the Fourth Amendment and gave the police unfettered spying powers. But that would open the door to abuses of power, so the founders wisely limited government searches to cases where the government could demonstrate it had probable cause to believe that a crime had been committed.

Separately, the fact that so many of the devices were able to be turned back on via a warrant suggests that this intermediary review step isn't really a problem for the FBI in most cases. But it's one that likely stops significant abuse of the system.

Filed Under: fbi, gps, robert mueller, spying, warrants

FBI Turns Off About 3,000 GPS Devices Following Supreme Court Ruling

from the why-not-just-get-a-warrant? dept

Back in January, we wrote about a quite limited ruling by the Supreme Court in the Jones case, which said that placing a GPS device on a car represented a search and was trespassing. Where the court held back was in discussing the reasonableness of the search, and whether or not it was actually constitutional to do so without a warrant. Some expect that a future case might rule that those searches are reasonable and don't need a warrant, but apparently the FBI isn't taking any chances. It's supposedly shut down 3,000 such devices -- and is now having trouble retrieving many of them since it doesn't know where they are (it's apparently asked courts to allow it to turn the devices on solely for the sake of retrieving them). Of course, this raises a bigger question that isn't answered: why didn't the FBI just get a warrant to use those devices in the first place? If it had done that, then there wouldn't be any issue to deal with here at all... It seems that the only reason not to get a warrant is because they're conducting fishing trips, rather than targeting those where there's probable cause.

Filed Under: 4th amendment, fbi, gps, privacy, trespassing

Fourth Amendment Lives? Supreme Court Says GPS Monitoring Is A Search That May Require Warrant [Updated]

from the surprise,-surprise dept

We've been following various cases involving courts and government regularly chipping away at the 4th Amendment. This has been especially true when it comes to GPS surveillance cases. While there have been a variety of different rulings in a variety of different courts, many federal courts have more or less said that law enforcement can spy on people at will with GPS devices (state courts have been a little less open to the idea). One interesting ruling on the federal side came out in August of 2010, when the DC Circuit ruled long term GPS surveillance required a warrant -- though was a bit unclear on what constituted "long term." Either way, this was the case that finally made it to the Supreme Court.

The Court came out with its ruling today, and it's a somewhat surprising defense of the 4th Amendment (pdf), saying that, yes indeed, the government first needs to get a warrant before attaching a GPS device to your car. This is a pretty big win for privacy advocates and those who believe in the general concept of the 4th Amendment. Update: As a few people have pointed out, it's not even that clear. Instead, it looks like they really punted. The court really stops just short of saying that a warrant is needed -- it just says that placing the device is a search. It's possible to interpret that to mean that placing the device was a reasonable search which didn't require a warrant. And that's what some are expecting.

Unfortunately, the win isn't as "clean" as it could have been. While it is a full 9-0 rout on the government's argument, the court is split on the reasoning as to why. The majority (five Justices) argues that a warrant is needed to attach a device to a car. Specifically, they argue that the process of putting the device on a car is a form of "search" (based on the idea that the government was trespassing), which requires a warrant. This leaves wide open the question of whether or not surveillance via existing GPS equipment also violates the 4th Amendment. And considering that many vehicles now have built-in GPS, and an increasing number of mobile phones do as well (which the government is almost certainly tracking), it seems like that's a key loophole left by the majority here. The majority basically punts on that issue.

The concurring opinion, by the remaining four Justices seeks to follow the ruling of the appeals court in saying that it's the long term surveillance that's the problem. It notes that someone out in public doesn't necessarily have an expectation of privacy, but longer term surveillance changes the equation. However, the majority swings right back to the "thorny questions" that many of us noted with the original decision: how long is "long term?"

That introduces yet another novelty into our jurisprudence. There is no precedent for the proposition that whether a search has occurred depends on the nature of the crime being investigated. And even accepting that novelty, it remains unexplained why a 4-week investigation is “surely” too long and why a drug-trafficking conspiracy involving substantial amounts of cash and narcotics is not an “extra-ordinary offens[e]” which may permit longer observation.... What of a 2-day monitoring of a suspected purveyor of stolen electronics? Or of a 6-month monitoring of a suspected terrorist? We may have to grapple with these “vexing problems” in some future case where a classic trespassory search is not involved and resort must be had to Katz analysis; but there is no reason for rushing forward to resolve them here.

It's interesting to see that the split among the Justices doesn't fully fall along the usual "cliques" within the Supreme Court. The majority opinion was written by Justice Scalia, with Roberts, Thomas and Kennedy (a block that will often vote together)... but also with Sotomayor, who is usually expected to side with the other group. Sotomayor actually wrote a separate concurrence that basically explains why she mostly agrees with the other group... but more or less thinks it's too early to rule on those other issues, because this case can be decided on "a narrower basis." The larger concurrence comes from Justice Alito (who frequently goes with Scalia, Roberts and Thomas...) and is joined by Ginsburg, Breyer and Kagan. It argues that rather than focusing on trespassing and search, we should go straight to the question of "reasonable expectation of privacy," and (as noted above) such long term surveillance, even if some of that info is public, violates that expectation.

So, at the top level, this is a good ruling -- and surprising support for a bruised and battered 4th Amendment. However, it still leaves open plenty of questions, meaning that it's likely that we'll see a few more similar and/or related cases in the near future before the boundaries of the government's ability to spy on people without a warrant is more fully explored.

Filed Under: 4th amendment, expectation of privacy, gps, privacy, supreme court, surveillance, trespassing

Supreme Court Considers Constitutionality Of Having People Tracked By GPS All The Time

from the expectations-of-privacy dept

Last year, we wrote about a (somewhat surprising, given similar rulings elsewhere) ruling by the appeals court for DC, saying that, while law enforcement could use a GPS device to track where you go on a trip, doing long-term, always-on monitoring went beyond the "reasonable expectation" of privacy, and was a 4th Amendment violation. This week, the Supreme Court heard the appeal on that case, and wondered whether or not such 24/7 monitoring was reasonable. The government's argument is simply that when you're traveling in public, it's public, and so there's no expectation of privacy. But, it sounds like the Justices recognize a rather problematic slippery slope developing around this argument:

This argument seemed to alarm several of the justices. "If you win this case then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States," Justice Breyer said. "And no one, at least very rarely, sends human beings to follow people 24 hours a day. That occasionally happens. But with the machines, you can. So if you win, you suddenly produce what sounds like 1984."

"This case does not involve 24-hour surveillance of every citizen of the United States," Dreeben countered. "It involves following one suspected drug dealer as to whom there was very strong suspicion." But he wasn't able to explain how pervasive surveillance would have to get before it became constitutionally problematic.

Chief Justice Roberts asked if the government's theory would allow the police to install tracking devices on the cars of the members of the Supreme Court. Dreeben said it would. He suggested that legislatures might want to place limits on such surveillance, but argued that it didn't raise any constitutional concerns.

Justice Kennedy asked whether the government's theory would allow the installation of a GPS tracking device on a suspect's overcoat. Again, Dreeben argued that it would, provided that it only report information about the suspect's movements in public places.

I also have to agree with Tim Lee, who wrote the Ars Technica post linked and quoted above, in noting that the lawyer for the guy who was surveilled, Antoine Jones, seemed to focus on a rather weak point in his argument. Rather than focusing on the problem that the appeals court noted -- this "mosaic theory" that the sum total of this 24/7 surveillance violated the 4th Amendment -- Jones' lawyer focused on the question of trespassing in installing the GPS device, something that seems kind of meaningless when you consider that most such tracking can now be done remotely via mobile phones/satellites, without a direct device attached to a car.

Filed Under: 4th amendment, gps, mosaic theory, privacy

Even If You Cancel Your OnStar Service, The Company Will Still Track (And Sell) Your Location

from the how-nice-of-them dept

GM subsidiary OnStar is apparently alerting its customers that even if they decide to cancel their service in the future, OnStar will still track information about them -- and, of course, potentially sell that data.

“What’s changed [is that if] you want to cancel your OnStar service, we are going to maintain a two-way connection to your vehicle unless the customer says otherwise.”

OnStar is spinning this as a plan to make it "easier to re-enroll" as a customer, but it also seems to admit that there's demand out there for the data that OnStar collects, so it has plenty of incentive to get more such data, even from non-customers. Of course, they don't even seem to acknowledge the creepiness factor of canceling a service, and then still having that service track your every move.

Filed Under: gps, privacy, tracking
Companies: gm, onstar

Judge Actually Recognizes The 4th Amendment: Says Police Can't Get Location Info From Telcos To Arrest You

from the they-have-other-ways... dept

With all the reports of law enforcement collecting tons of location info from telcos without a warrant, as well as a bunch of court rulings that seem to chip away at what's left of the 4th Amendment, it's somewhat surprising to see a magistrate judge say that police cannot use a warrant to find out your location from a mobile operator, for the purpose of arresting you. From Orin Kerr's summary of the ruling:

Here’s the basic reasoning of the opinion. First Judge Gauvey creates what a appears to be a new distinction in Fourth Amendment law: a distinction between (a) Fourth Amendment rights in location at a given time, and (b) Fourth Amendment rights in movement over time. According to Judge Gauvey, individuals have a reasonable expectation of privacy in both. There is a reasonable expectation of privacy as to a person’s location if a person cannot be visually observed in that same way. And there is a reasonable expectation of privacy in movements, which Judge Gauvey seems to be taking from the DC Circuit’s Maynard/Jones “mosaic theory” case (which the Supreme Court recently agreed to hear). Judge Gauvey then reasons that if everyone has this Fourth Amendment right, people who have warrants out for their arrest have this right to privacy, too. For that reason, the information held by the phone company as to the location of the phone user is protected by the Fourth Amendment.

Judge Gauvey then considers whether the Fourth Amendment allows a warrant to be issued based on probable cause that the information will help execute an arrest warrant. She concludes the answer is no: A Fourth Amendment warrant requires probable cause that evidence or contraband is located in the place to be searched or that a person who committed a crime is in the place to be searched. Mere probable cause to believe that location information would help the police execute a warrant is not enough under the Fourth Amendment.

Kerr suggests that the case law actually disagrees with the judge in this case, and even the judge appears to admit that she thinks the Supreme Court might disagree, but she said without specific guidance from the Supreme Court, she believes her ruling is correct.

Filed Under: 4th amendment, gps, location, privacy

NJ Judge Says Using GPS To Track Spouse Is Not An Invasion Of Privacy

from the expectation-of-privacy dept

DannyB was the first of a few of you to send in this story about a NJ court ruling that said a wife putting a GPS device in her husband's car, in order to help investigators she had hired to tell her if he was cheating on her, was not an invasion of his privacy.

“There is no direct evidence in this record to establish that during the approximately 40 days the GPS was in the ... glove compartment the device captured a movement of plaintiff into a secluded location that was not in public view, and, if so, that such information was passed along by Mrs. Villanova to (Leonard),”

Venkat Balasubramani has an excellent analysis of the ruling and notes some of the oddities in it. The one that struck me in particular was the fact that the court didn't seem to pay much attention to the fact that the car was jointly owned by the couple, which you would think would lend even more credence to the idea that she had the right to put a GPS device on the car:

There was an interesting fact that didn't receive as much as attention as I thought it should: the car was jointly owned. I'm surprised the court did not discuss the fact that since the wife owned the car, she could have argued that she had the right to track its movements. (On a related note, the plaintiff, who was a police office, tried to argue that he used the car for law enforcement purposes once in awhile, but the court is extremely skeptical of this argument.) Another fact that the court did not focus on directly is whether the result would have been different if the investigative firm (rather than the wife) was the one who did the GPS tracking....

It was also interesting that despite using a "reasonable expectation of privacy" standard, the court does not discuss the diminished expectation of privacy for the husband vis a vis his wife . . . who is trying to investigate him for having an affair. I'm not suggesting that spouses waive their privacy rights with respect to one another, but if you're having an affair, is it not reasonable to expect that your spouse may be checking up on you?

I'll admit that I'm not nearly as troubled as I am by similar stories involving police putting GPS devices on cars. In these types of cases, there do seem to be plenty of additional reasons why such GPS tracking is not nearly as egregious. I'm sure putting a tracking device on your spouse (or in their vehicles) may serve as a perfectly good reason for a divorce, but as a legal matter? Seems like a stretch.

Filed Under: gps, new jersey, privacy, spouse, tracking

Supreme Court Will Weigh In On Warrantless GPS Tracking

from the finally dept

We've been covering for a while now the rather mixed results from courts concerning the legality of police sticking a GPS transmitter on a car without a warrant in order to track a suspect. While some state courts have said such tracking is illegal, most federal courts have gone the other direction, saying that it's fine. Last summer, we noted that the DC Circuit court made a somewhat surprising ruling, saying that when the GPS tracking was "long-term," it suddenly switched from being legal to illegal. This odd standard (how long the tracking goes on for) seemed somewhat arbitrary. But, more importantly, the fact that different federal circuits disagreed with the legality of such things set up what we felt was an inevitable Supreme Court case.

And now it's here. Earlier this week, the Supreme Court announced that it would hear the appeal on that DC circuit case, United States v. Jones. This means, of course, that the issue will be settled once and for all, assuming the Court gives a clear ruling (something it doesn't always do). I do worry that it will merely cement what the other appeals courts have said, and basically diminish the Fourth Amendment even further. The feds have made it clear that they'd like to ignore the Fourth Amendment in such cases, and it would be nice if the Court tells them they cannot do that.

Filed Under: 4th amendment, gps, privacy, supreme court, warrant

Official Geolocation Privacy Bill Introduced: Say No To Unauthorized GPS Tracking

from the don't-track-me,-bro dept

Last week, we wrote about the plan by Senator Ron Wyden and Rep. Jason Chaffetz to simultaneously introduce bills in both houses of Congress to outlaw location tracking without consent. Those bills have now been officially introduced. The bill is mainly targeted at law enforcement officials who feel they can put GPS devices on cars without first getting a warrant (and the many courts that have backed them up on this). It appears that if this bill becomes law, law enforcement will have to (gasp!) actually get warrants to do GPS tracking.

The bill also does focus on private collection of geolocation data -- and I had initially been a bit worried about that, since there are many cases where that might be reasonable (work related, or when someone purposely allows such info sharing, via services like Google Latitude). However, it looks like the bill has put exceptions in place for such situations. I'm not sure I understand the wisdom of a blanket statement and then exceptions, rather than specifically carving out what's banned, but perhaps it makes sense. Others have pointed out that it would be nice if the bill included reporting on stats concerning how often the government accesses geolocation data, and I agree that would be useful. One reason why people don't think too much about this is they don't realize how frequently the government uses the power to get location data.

Filed Under: gps, jason chaffetz, privacy, ron wyden, tracking