Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants

from the privacy-is-dead dept

Back in August, we wrote about the (somewhat surprising) appeals court ruling in the District of Columbia circuit saying that longterm GPS tracking of someone by law enforcement required a warrant. The issues at play here certainly aren’t entirely clearcut. After all, it does make sense that when you’re in a public space, you have little expectation of privacy. But is that true when it comes to tracking everywhere you go in public? That seems a little more questionable, and it’s clearly the part that the court had trouble with, noting that short bursts of surveillance don’t require a warrant, but sustained surveillance gets past the expectation of privacy barrier and requires a warrant. While some worry that this is too vague, it does have a certain amount of logic to it.

Either way, the Justice Department wants none of that, and is asking the full circuit to rehear the case and reverse the original ruling, saying that it should not require a warrant, suggesting that the sum of all our public travel does not deserve any privacy. While I do agree that the initial “rules” are vague, I have to agree that sustained, long-term tracking through a secretly installed GPS devices does seem to cross a line on the “expectation of privacy” spectrum.

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Comments on “Justice Department Insists It Should Be Able To Secretly Stick GPS Devices On Cars Without Warrants”

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Anonymous Coward says:

Re: Fine

Cop cars are taxpayer funded and hence are public property, unlike citizen cars. Given that they shouldn’t be exempt from the possibility of having tracking devices on them under the pretext that they have any right to privacy. They do not. Private property (a car that belongs to a citizen) does, public property (a cop car) does not.

Given that, I’m not entirely sure we should have publicly viewable tracking devices on cop cars being that criminals might be able to use that information to know where various cops are located and evade law enforcement. Maybe if there was a day delay or something then it might be OK.

Then again, cop cars have lights, are specially colored, and have police inscription notices to indicate that they’re cops. Perhaps having the tracking device on unless there is a good reason to turn it off, such as if they’re in the middle of an important pursuit or stakeout or something similar.

Christopher (profile) says:

Re: Re: Fine

I would want this monitoring done so that a cop cannot do the bull that they tried to do with my one relative and say that they saw him breaking into a home when he was a mile away from said home at the time.

Thankfully, a concerned citizen came forwards and said “Bull, at the time this cop is stating, he was getting food at a 7-11!” and the videotapes from the 7-11’s surveillance proved the citizen right.

Montezuma (profile) says:

I always love to hear people use on of the many variations on, “I am doing nothing wrong, so I have nothing to hide”. Yeah, well, I am not doing anything wrong either, yet I believe that the state is required to follow the law, just like I am. A part of that law is respecting my privacy and respecting my rights.

Except for exigent circumstances, such as law enforcement needing to follow a person to save another person’s life(such as in a kidnapping, etc), then I could see a reason the DoJ’s point. The thing is, I still believe law enforcement always must follow the law, no matter the situation and there are already exigent circumstances exclusions to many laws today. The issue is that the U.S. Government is simply looking to erode the rights and protections U.S. Citizens enjoy to make their job easier. They(the U.S. Government) does not think, or at least discuss, the possible(and highly probable) abuses that such new power will introduce.

The other problem is that so many idiot voters either vote for the idiots that provoke these changes, or sit back and watch them(the bad politicians) rise to power.

Anonymous Coward says:

Here's my take

1. Installing a tracking device onto my car without my permission is an invasion of property.

2. A tracking device will track me even when I’m driving on private roads, where a cop car couldn’t follow without cause.

3. Unlike a cop car, a tracking device is invisible. When I know I’m being followed I can adjust my behavior in order to protect my privacy; I can’t do that when I don’t know I’m being tracked.

4. Even if none of the above were true, retrieving the information collected by the tracking device is almost certainly a kind of search, and should therefore require a warrant.

Scote (profile) says:

“1. Installing a tracking device onto my car without my permission is an invasion of property.

2. A tracking device will track me even when I’m driving on private roads, where a cop car couldn’t follow without cause.”

Both of these should utterly destroy the government’s claim.

A person’s car may be on public property. But their car is private property. The government should have no right to secretly, and without warrants, plant devices on people’s private property. Does the government also claim a right to spray paint people’s cars? Maybe draw big numbers on the roof so that the car can be tracked by air? It might seem like a ridiculous argument, but that is the logical extension of the government’s argument, that it has the right to alter your vehicle without your knowledge, without your permission and without a warrant so long as they find it on public property.

And, as AC points out, the GPS doesn’t stop tracking once it leaves public property. It tracks you everywhere, inside private parking lots, private roads, private corporate compounds, everywhere. That utterly refutes the government’s bogus claims.

Christopher (profile) says:

Re: Re:

Actually in a lot of cases? The people who own the homes own the LAND underneath the homes as well, so people are not sitting on ‘public property’.

Anyway, the whole ruling was supposedly that people don’t have a right to ‘privacy’ in cases where anyone can come onto their property and put something on something.
Load of bullcrap, to be blunt, but apparently the 9th Court was high that day and it got past them.

Anonymous Coward says:

Re: Re: Re:

Try not paying property taxes on the home and land that you claim to ‘own’ (even if it’s free and clear with no mortgage or liens against it) for a couple years and see if you still ‘own’ it…..

It varies by state and county, but in WA state 3 years of unpaid property taxes means the county can auction off the property you own for the amount of tax you owe them (anything above and beyond the taxes owed they get to keep, and you lose your property… assuming you don’t pay the taxes at the final notice). Now if you really owned the property and land, how could they do this? That’s right, you only have a ‘license’ to use the land as long as you agree to follow the various state/county laws (is it really any surprise that corporate businesses want to have the same power over our property that the government claims?).

Christopher (profile) says:

Re: Re: Re: Re:

You are severely stretching the definition of license and actually, in most states (WA must have been high when they passed that law) your PRIMARY HOME cannot be sold for tax liens or anything else. Period, done with, over.

In that ONE STATE (and that law could be challenged as giving rights to the federal government hat a regular citizen doesn’t not have, which is ILLEGAL!)? Yeah, it’s a license.

Anonymous Coward says:

Re: Re:

I’ve heard of the trick where someone can take a parking ticket and move it onto another car in hopes that the other person won’t notice that the license plates don’t match up.

I’ve also heard of people who keep past parking tickets on their windshield wipers to trick cops into thinking that this car already has a parking ticket from another cop so as to avoid getting another parking ticket. Won’t work for something like street sweeping, obviously, but at the beach it might.

Calvin (profile) says:

slightly off topic

Here in the UK the police regularly use the millions of CCTV cameras in conjunction with number plate recognition software to flag up and follow ‘vehicles of interest’.
So I guess in this country they don’t really need to attach GPS devices and the use of CCTV and number plate recognition doesn’t require any form of warrant at all.

Killer_Tofu (profile) says:

Re: Re: Re: slightly off topic

Banning guns has done nothing for Britain / UK. Guns do not make people violent. In the time that their “gun crime” has fallen, their “knife crime” has risen drastically.
If you count it in a much better manner – violent crimes – you will see that the UK is getting worse, not better.

Steven (profile) says:

Re: Re: Re: slightly off topic

Not to derail this any more, but that is fairly misleading. While Gun violence is certainly lower, overall crime rates are higher than in the US. The US leads in homicide, but Britain takes just about everything else.

It’s also worth mentioning that while there were only 39 fatalities as you said, firearms only accounts for about 6% of homicides in Britain with the leading weapon of choice being sharp objects.

In short I think it’s fair to say that the British gun control reduces death at the expense of allowing greater criminal activity.

Christopher (profile) says:

Re: Re: Re: slightly off topic

Sorry, but I have to disagree with you. The fact is that the gun crime went up as soon as they made guns illegal to have in a home.

The ONLY reason that the crime rate is now going DOWN is because the VIOLENT gun criminals are being put in? PRISON! For 20-life or longer!

No, getting rid of the guns in society made society MUCH LESS SAFE. How? By making criminals not take that second to think about “Oh, I might get shot and killed if I break into a person’s home!”

NON-gun crime in Britain: home invasions without guns, break-ins, etc. have gone UP since gun control was passed, not down, buddy boy!

Anonymous Coward says:

Re: Electronic Gold Star

> If you own a Cell Phone and keep the battery in it…

I hear this all the time, but never saw any proof.

Do you have any reliable source saying that a phone TURNED OFF will keep in contact with the cell phone infrastructure?

Even when one of the reasons for turning off a cell phone is when you are in an airplane, where having the cell phone transmit to the base stations is FORBIDDEN?

And you cannot say that the phone passively listens for a magic message. On airplanes, even receive-only gadgets like a GPS receiver are often forbidden too, at least while taking off and landing. And without the phone transmitting, the cell phone infrastructure cannot know which location area it is in to transmit said magic packet.

average_joe says:

You guys seem to be missing the point that these are federal agents acting with probable cause. They can’t just go out and do this to everyone–not without probable cause.

Keep in mind that the feds can already do this in all fifty states. This case was only in D.C. so it only applies there.

The holding of the D.C. Circuit was that the feds couldn’t put a GPS on your car and record the information for 28 days straight. Nothing says they can’t it for 27 days or less.

Most states require that state-level law enforcement officers do need a search warrant first. So while your local police or sheriff’s office would need a warrant, the feds would not. This is nothing new.

Killer_Tofu (profile) says:

Re: Re:

You guys seem to be missing the point that these are federal agents acting with probable cause.

Gotta be honest here Joe, I find your blind faith in the feds to not abuse this a little repulsive. The feds have already shown that they regularly abuse the warrentless wiretapping. They will abuse this just as much.

average_joe says:

Re: Re: Re:

You should keep in mind that there is the exclusionary rule. If the feds track you without probable cause, then whatever they find out about you pursuant to that search will be inadmissible. The feds have every incentive to play by the rules if they want to get their conviction.

Of course I realize that there will always be people who abuse their authority. I don’t have the blind faith you impute me with. You’re barking up the wrong tree if you think I’m not a realist. I don’t find you to be a very thoughtful person, so I’m not surprised you’ve mislabeled me.

Steven (profile) says:

Re: Re: Re: Re:

Sorry, but probably cause really has no bearing here. Probable cause allows the police to enter a home if they hear screaming or detain/search a person near the scene of a crime. It is for situations where the time has to be now.

Around the clock surveillance in any form doesn’t fit the bill. That is what warrants are for.

average_joe says:

Re: Re: Re:4 Re:

They can get a warrant, they just don’t have to, except for in D.C. where they now need a warrant if the GPS search is for 28 days or longer.

I’m not aware of any other circuit where they have such a restriction, and there are three that I know of that have held they don’t need a warrant for such searches.

I agree with the D.C. Circuit that these other circuits are misreading the Supreme Court’s decision in Knotts–they should have to get a warrant. I don’t like the thought of the feds tracking me for days on end without a warrant.

The Fourth Amendment only says that if they get a warrant, it must be based on probable cause. It doesn’t say they need a warrant in the first place. That’s the problem.

I hope this case goes to the Supreme Court. Now that there is a genuine split in the circuit courts, I think Supreme Court review is likely.

Christopher (profile) says:

Re: Re: Re:5 Re:

If they CAN get a warrant, then we should FORCE THEM to get a warrant, instead of bullshitting that they have ‘probable cause’.

When something is of IMMEDIATE necessity to take action on, like you hear gunshots or someone screaming “DON’T KILL ME!”…. okay, that is probable cause.

Following someone everyone they go based on a SUSPICION that they are doing something illegal? Hell no, that is called ‘gut instinct’ and it was MANY MANY MANY MANY MANY MANY times in courts called NOT PROBABLE CAUSE!

Killer_Tofu (profile) says:

Re: Re: Re: Re:

Do I have evidence? No. Do I need any? No. They have regularly abused tons of technologies and things they have been given. It has happened time and again. I am sorry for expecting that they have not changed. If there is one thing those in power want, it is more power. This is not so much bias and emotions as it is there very clear track record on these matters.

It does not matter if they are going for a conviction or not. It should be by the books and require a warrant period. If they did not, and I find the box, that means it is a gift to me and I will do whatever I want with the box since it is attached to my personal property.

Right after criticizing me for not trusting them to not abuse it, you go and admit that you realize there will always be people who abuse it. Okay, now that seems slightly contradictory.

They can’t just go out and do this to everyone–not without probable cause.
You can say that, but we both know it isn’t true and that isn’t how they work. Their own track record speaks to support my side. Sorry if I mislabeled you but I still stand completely by what I think the feds will do with this.

average_joe says:

Re: Re: Re:2 Re:

Hey man, I’m with you… to a point. Of course there are always going to be people who abuse their power, and warrants don’t necessarily mean they’re not lying. I’m sure there are some feds who even lie to magistrate judges to get their warrants.

We are however protected by the exclusionary rule and the fruit of the poisonous tree doctrine. Evidence culled from an illegal search is not admissible. That protection goes a long way.

I do think that the vast majority of feds play by the rules, so I’m not really too worried about it. The judges, lawyers, cops, prosecutors, and feds that I know all go to great lengths to get everything right. Don’t go around thinking they’re all bad apples, because they simply are not.

That said, I’m clearly of the opinion that they should have to get a warrant for such searches. I hope the Supreme Court takes this case and lays down some new rules that protect our privacy.

Killer_Tofu (profile) says:

Re: Re: Re:3 Re:

I hope the Supreme Court takes this case and lays down some new rules that protect our privacy.
I would love to see that happen. But with the way things have been going over the past 10 years I do not think I will hold my breath. The Patriot Act was a huge slam to my opinion of the government.

And I do acknowledge that they are not all bad apples. I just do not like how the bad apples never seem to be removed. They are always covered for by the others, or we get laws passed that retroactively say it was okay to break the law. That is what my government has shown me over the past years since I became old enough to pay attention.

I feel like the 4th amendment is dead and our government does not care. I write letters to my state and federal representatives but it is an extremely rare case I get anything other than a “thank you for writing” auto reply. And even when they do reply I feel like they are not so much listening as just saying “Thank you for your opinion but I have already made up my mind and will not listen, here is what I will do or have done:”

One could say I am disenchanted with the system. It is this feeling that the government does not care about those it claims to represent that I am all for civil disobedience (going back to some of our prior conversations).

Sorry, think I went a bit off topic there.

Christopher (profile) says:

Re: Re: Re:5 Re:

Yes, it is a HUGE character flaw. The best thing to do, as I told my children, is to DISTRUST someone until they give you a reason to trust them.

Meaning, good behavior over a period of time.

With the police? I tell everyone I know to NOT distrust them and to basically hate them…. by showing them the NUMEROUS instances where the police have overstepped their bounds in the mind of the regular American (not the criminal American) and not been punished for it.

To be blunt: I am more frightened of the freaking police than I am of a child forcible rapist, serial killer, etc.

Chris in Utah (profile) says:

Re: Re: Re:7 Re:

No tinfoil needed. I’ll always er on the side of caution when the facts tell me that anyone has the ability to do anything without the repercussions.

Why be more frightened? At least I can hope for temporary insanity verses the pedophile or serial killer to meet a just end. With cops you hope for a L.A. Riot.

Pretty clear to me.

average_joe says:

Re: Danielle Citron's analysis of two conflicting rulings

That’s another interesting set of Fourth Amendment rulings, but it’s a different issue than what the case in this article is about.

That one is about what the feds need to get a warrant to access historical cell-site data. It’s a bit more complicated since there is a statute at issue.

This case is about whether or not the feds need a warrant to do GPS surveillance over an extended period.

Mike Raphone says:

Technology Abuse

First there is the excuse: The government used the alibi that GPS subscriber tracking was added to cell phones because there was a little old lady that ran into a ditch and the police could not find her when she dialed 911. The real reason was for the government to be able to track anyone using a cell phone when the government tapped their cell phone.

If the courts continue to approve of fourth amendment violations how long will it take for the government to require everyone to have an RF ID implanted in their bodies. The governments alibi this time will be that the RF ID is to protect citizens by storing all of the citizens medical records in case they cannot provide proper identification when they are admitted to a hospital. The government will not reveal that the RF ID will also store all other personal history! Do not forget Logan’s Run! If your are bad the government will turn you into Soylent Green!

Vic (profile) says:

No need to involve cops for GPS

GPS tracking only needs to be ‘legal’ if its used for a legal purpose. I’ve heard cops say they don’t have electronic surveillance equipment – and they use contractors, like from the phone company. You can take your car in for servicing, and while you are waiting somebody has a nice chat with the service guys and you drive away with GPS wired under the dash of your car. No cops involved in the setup.

They might monitor the signal but monitoring is airwave stuff.

average_joe says:

Re: No need to involve cops for GPS

That’s an interesting anecdote, but in that situation I would still say that the cops need probable cause. If the law in their district requires a search warrant, they’d need that as well.

Think about it. How are they going to explain to the judge that they just so happen to be tracking the GPS on the suspect’s car? The judge would obviously know they were in on it.

Christopher (profile) says:

Re: No need to involve cops for GPS

Ah, but the law says that if the police are involved in ANY way with this (including PAYING THE COMPANY IN QUESTION)…. it has to be done by having a warrant beforehand.

They tried that bullcrap in California awhile ago, and the judges were not buying it.

In fact, one prosecutor was put into jail for contempt for a few days for trying that argument.

Judge made it VERY clear: if the police ask a private citizen or private corporation to do something and then that corporation or citizen asks ANOTHER person to do something else that is CONNECTED with the thing the cops asked the first person to do?

THROWN OUT EVIDENCE, unless the cops have a warrant, because those people are working ON BEHALF OF THE POLICE… i.e. they are deputized officers.

Vic (profile) says:

No need to involve cops for GPS

> just so happen to be tracking the GPS on the suspect’s car?

They very much do not do that – well maybe if necessary “we were tracking the cell phone”. If they have something with serious short term implications they will see the judge. If they’re tracking and building a map of activity to learn what’s going on they use a variety of methods. With the right GPS stuff they can track all day and look at the pattern on the computer at night. Then look for matches/overlays between different people. That’s just watching, linked to neighbourhood watch.

Another thing that happens is with charged people. Police often want to avoid trial, so the normal way is to give the accused at “a hard time” so they will give up and arrange something. The GPS allows ‘following’ without following, and hard time activites.

Gene Cavanaugh (profile) says:

Warrantless GPS surveillance

“But is that true when it comes to tracking everywhere you go in public?”
I doubt the Justice Department is all that interested in where you go in “public”; you can go to private places in a car, and I think that is their interest. Remember, J. Edgar Hoover had surveillance on people (Martin Luther King, John Kennedy – the list goes on and on) and the prize items were not things in learned (and documented) about them in “public” places.
I think it would be VERY unwise for a court to allow this!

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