Touching your privates, Two

Also in mid-October,

Yasir Afifi, a 20-year-old computer salesman and community college student, took his car in for an oil change ... and his mechanic spotted an odd wire hanging from the undercarriage.

It proved to be a GPS device that the FBI had planted on his car.

Use of surreptitiously-planted GPS trackers by police or federal agents, enabling them to track your movements 24/7 without the hassle of needing an actual person to do it, is becoming more and more common - and is often done without any sort of warrant whatsoever.

Different federal courts have reached different conclusions about the practice. For example, in August the federal appeals court in Washington DC threw out the conviction of an accused cocaine dealer named Antoine Jones, ruling that

the accumulation of four-weeks worth of data collected from a GPS on Jones' Jeep amounted to a government "search" that required a search warrant [which was never obtained].

Judge Douglas Ginsburg said watching Jones' Jeep for an entire month rather than trailing him on one trip made all the difference between surveilling a suspect on public property and a search needing court approval.

"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil," Ginsburg wrote. The state high courts of New York, Washington and Oregon have ruled similarly [as has that of Massachusetts].

But three other federal circuit courts have disagreed. For example, a three-judge panel of the Ninth Circuit Court of Appeals upheld the conviction of accused marijuana grower Juan Pineda-Moreno, who was arrested with a lot of pot in his Jeep after the warrantless GPS device attached to his car alerted agents that he was at a suspected "grow site."

"The only information the agents obtained from the tracking devices was a log of the locations where Pineda-Moreno's car traveled, information the agents could have obtained by following the car," Judge Diarmuid O'Scannlain wrote for the three-judge panel.

Sure. If they'd done it 24/7. The court was also unconcerned, clearly, with the fact that it wasn't even a matter of police being able to track the car remotely: The process was, according to the accounts, automated. The observation, the tracking, was all done by the computer system and actual people didn't get involved until that system "alerted" them that this would be a good time to move in.

Editorializing on the case, the Boston Globe decried

advancing technology [that] makes possible a degree of relentless 24/7 surveillance that would have been the stuff of science fiction four decades ago. ...

[The court] ruled that the agents had done nothing wrong in planting the GPS tracker, since there is no reasonable expectation of privacy in an open driveway. After all, the judges reasoned, no one would object “if a neighborhood child had walked up Pineda-Moreno’s driveway and crawled under his Jeep to retrieve a lost ball or runaway cat."

When the full circuit refused to reconsider the case, Chief Judge Alex Kozinski wrote a fiery dissent: “There’s no limit to what neighborhood kids will do, given half a chance: They’ll jump the fence, crawl under the porch, pick fruit from the trees..." Is it only the well-to-do whose cars — secure in underground garages or behind tall walls or electric gates — are protected by the Fourth Amendment?

Even more, the panel's reasoning, the kind repeatedly used to justify shrinking our zone of personal privacy in the face of official desires to intrude on it, is strained to say the least. Because I'd have no objection to a child retrieving a lost ball from under my car - which affects neither me nor the car and has no future impacts - I can't object to government agents attaching something to my car which does affect me and the car and will have future impacts? What the hell kind of logic is that? Because I allow neighborhood children to be on my lawn I can't object to a bunch of loud drunks gathering there later? What?

Kozinski also wrote that

the widespread use of the [GPS] device [by law enforcement] was straight out of George Orwell's novel, "1984".

"By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives," [he said.]

Kozinski, who immigrated from Communist-era Romania in the 1960s, declared that

[t]here is something creepy and un-American about such clandestine and underhanded behavior. To those of us who have lived under a totalitarian regime, there is an eerie feeling of déjà vu.

Because different courts have reached different decisions, the Supremes are likely going to have to rule on this issue at some point. George Washington University law professor Orin Kerr says it comes down to the issue of

public vs. private. As long as the GPS devices are attached to vehicles on public roads, Kerr believes the U.S. Supreme Court will decide no warrant is needed. ...

"The historic line is that public surveillance is not covered by the 4th Amendment" ... Kerr said.

The fact that this is not "public" surveillance but technological surveillance, the fact that you are not being observed by people but, in essence, by a computer system, the fact that you continue to be observed even if you enter private property (because how does the GPS know the difference), none of that matters. The fact that agents had to sneak onto your property to clandestinely plant a device in order to allow for the surveillance in the first place doesn't matter, either. All that matters, it seems, is to make it ever-easier for the cops to shrink our range of "reasonable expectation of privacy" to only those areas our technology does not currently reach.

Footnote Won: The Obama administration has asked the DC appeals court to reconsider its ruling, calling the decision "vague and unworkable." It also asserts that agents will lose access to a tool they use "with great frequency."

As for the first part, the ruling was "get a warrant." What the hell is "vague" about that? As for the second part, besides an admission that the practice of technological tracking has become commonplace for the feds, isn't it also an admission that it's being used in cases where the feds could not get a legitimate warrant? Otherwise, how would they "lose access" to GPS tracking?

It may indeed be such an admission, because in the case of Yasir Afifi, it appears he was tracked simply due to his extensive connections to the Middle East without evidence of suspected criminality.

Footnote Too: In its editorial, the Globe called on Congress to

impose reasonable guidelines on the use of high-tech surveillance without a warrant or probable cause. Several states have already done so.... Federal law-enforcement agents should be held to the same requirement.

Seems like a good idea. Which requires being willing to be called "soft on crime." Which means it will never happen.