EFF Sues CBP, ICE Over Refusal To Hand Over Its GPS Tracking Device Policies

from the Garmins-in-boxes-marked-'CLASSIFIED' dept

Roughly a year ago, the government attempted to argue the border search exception applied to GPS tracking devices it surreptitiously attached to a truck crossing the border from Canada and tracked for the next 48 hours, following it from its arrival point in Michigan to its destination in California.

The court disagreed with the government's interpretation of the border search exception. While it may have covered the original warrantless placement of the tracking device, it did not cover the next two days of tracking while the truck traveled far inland.

The government lost its evidence and, eventually, its case. Stuck with evidence solely derived from an unconstitutional search, the government dismissed the charges and the two arrested Canadians were free to return to their home country.

During this case, the government claimed these apparently illegal searches were within policy. Specifically, affidavits filed by the DOJ stated ICE and CBP both had policies that permitted the warrantless, suspicionless installation of tracking devices on vehicles at border crossings.

If these policies exist, no one has seen them. The EFF would like to. It filed FOIA requests with both ICE and CBP, asking the agencies to produce the policies referred to in court. To date, it has received nothing from either agency.

According to the EFF's FOIA lawsuit [PDF], both agencies have violated the law with their continued refusal to produce the requested documents. ICE received the EFF's request last November. Four months later, it said it had found three responsive pages, but that all three pages would be withheld, citing Exemption 7(E). This exemption protects "law enforcement sensitive information" that might give bad guys the jump on the feds if they knew the feds might try to sneak tracking devices onto their vehicles at border crossings.

It would seem the case above -- the one cited in the EFF's lawsuit -- kind of exposed ICE's GPS device subterfuge. The only thing surprising about the use of GPS devices was the government's assertion that the border search exception applies everywhere in the United States, not just at or near its borders.

The EFF's appeal of ICE's decision also pointed out that the Supreme Court's 2012 decision on tracking devices made it pretty clear this super-secret law enforcement technique was actually well-known and understood pretty thoroughly by cops and criminals alike. Upon receipt of this appeal, ICE apparently decided it would no longer discuss its ridiculous exemption deployment.

The CBP, on the other hand, has refused to do anything at all. It too received the EFF's FOIA request last November, but apparently can't even be bothered to look for documents, much less pretend discussion of GPS tracking devices would undermine its covert operations.

The lawsuit seeks the full disclosure of the documents as well as any legal fees incurred by the government's refusal to comply with FOIA law. Should this finally dislodge the documents, we'll all know just a little more about the apparently minimal standards border agencies apply to their use of tracking devices.

Filed Under: cbp, foia, gps, ice, policies, public records, tracking, transparency
Companies: eff


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  • identicon
    Annonymouse, 29 Aug 2019 @ 5:24pm

    LAW? They are the law.

    These documents are like cheese in the Python cheese shop.
    Lots of excuses but no actual cheese.
    Sadly the conclusion will be us being shot.

    reply to this | link to this | view in chronology ]

  • identicon
    Pixelation, 29 Aug 2019 @ 9:07pm

    EFF Sues CBP, ICE. OMG! Like WTF! GPS tracking is FUBAR. Fix it ASAP! The CIA must be MIA.

    reply to this | link to this | view in chronology ]

  • identicon
    Anonymous Coward, 30 Aug 2019 @ 12:58am

    Not sure why...

    I'm not sure why these agencies are so opposed to releasing that policy. After all, it's just three words:

    "If possible, track."

    reply to this | link to this | view in chronology ]

    • icon
      That One Guy (profile), 30 Aug 2019 @ 1:58am

      Re: Not sure why...

      My first thought is that it's because the 'policies' don't actually exist in paper form, and it's just generally accepted that it's allowed by the agencies in question.

      reply to this | link to this | view in chronology ]

      • identicon
        Anonymous Coward, 30 Aug 2019 @ 5:40am

        Re: Re: Not sure why...

        My first thought is that it's because the 'policies' don't actually exist in paper form...

        I thought they were supposed to follow the law instead of their own made up policies anyway. Don't know why I thought that. I guess I forgot that they're above the law.

        reply to this | link to this | view in chronology ]

        • icon
          That One Guy (profile), 30 Aug 2019 @ 6:26am

          Re: Re: Re: Not sure why...

          I thought they were supposed to follow the law instead of their own made up policies anyway.

          Theoretically, yes.

          In practice however, with so many judges and politicians willing to look the other way if not actively support anyone with a badge no matter what, not so much.

          reply to this | link to this | view in chronology ]

  • icon
    That One Guy (profile), 30 Aug 2019 @ 2:03am

    'And here's the file documenting our guilt...'

    Four months later, it said it had found three responsive pages, but that all three pages would be withheld, citing Exemption 7(E). This exemption protects "law enforcement sensitive information" that might give bad guys the jump on the feds if they knew the feds might try to sneak tracking devices onto their vehicles at border crossings.

    In addition to the fact that everyone knows they pull that sort of stuff so there's no secret to release, there's also the fact that the action in question(not just attaching the device but tracking it for days without a warrant) was struck down by the courts as illegal, such that they are essentially claiming that they have a policy that involves an illegal action, which would be kinda damning if true, and explain why they are absolutely dedicated to not sharing any documentation regarding it.

    reply to this | link to this | view in chronology ]

  • identicon
    David, 30 Aug 2019 @ 3:32am

    Remember history?

    The secret police hierarchies were a seminal part of nationalist European empires and played an important part in coercing the populaces into not one but two World Wars.

    Turning law enforcement into a secret society disparate from its nominally controlling populace is bound to turn bad: power corrupts. That's the cornerstone of democracy in the first place: hand the power to the people, then at least they are responsible for the consequences. Of course, future generations don't get to vote on our behavior affecting them, so the "responsible for the consequences" is still rather tenuous. But nobody figured out something better yet.

    At any rate, tenuous as democracy may be, it can only work at all when those responsible for the consequences actually know what is happening.

    That may be inconvenient at times for those doing the work (the "you don't want to see how sausage or laws are made" effect) but there really is no sensible alternative. Secrecy may be effective but it is out of control.

    reply to this | link to this | view in chronology ]


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