(MintPress) — Police tracking ordinary citizens using using tap and trace, ping data, license plate surveillance and a variety of other unknown and potentially illegal techniques may sound more than a bit Orwellian, but it’s currently happening in the U.S. and a leading civil rights group is hard at work trying to stop it.
The American Civil Liberties Union (ACLU) is calling upon the Federal Bureau of Investigation (FBI) to turn over two GPS tracking-related memos, filing a formal legal complaint against the agency Wednesday, in the civil rights group’s latest battle on behalf of privacy rights.
The issue was ignited after a lawsuit was filed by Washington D.C. nightclub owner Antoine Jones. In 2005, police attached a GPS device to his Jeep to track his movements in suspicion of a drug trafficking ring. Jones was convicted in the case after police followed his movements for four weeks, but the decision was ultimately overturned when it was ruled that the police did not have a warrant for the tracking and that any usage by police of a GPS device on a vehicle constitutes as a search.
“We still have no idea what the FBI is doing in terms of tracking, post-Jones,” Catherine Crump, the author of the Complaint for Injunctive Relief and an attorney at the ACLU, said in an interview with ARS Technia. “If all Jones means is that law enforcement agents have to track you through your phone instead of your car, it’s not going to mean much in the end.”
Another government surveillance case making headlines
But Jones isn’t the only recent example of this issue garnering media attention and the help of the ACLU.
Last year, Yasir Afifi, a 20-year-old Arab-American student with no criminal record, found a strange device on his car. He posted a photo of the device on the Internet and discovered that it was actually a GPS tracking device.
Later, FBI agents showed up at his door demanding it back.
In a lawsuit filed in 2012 on behalf of Afifi by Council on American-Islamic Relations (CAIR) the FBI is being sued for placing a GPS tracking device on his car and then threatening him with charges when he tried to keep it.
In a similar 2010 case, United States v. Pineda-Moreno, Juan Pineda-Moreno came under suspicion by the Drug Enforcement Administration (DEA) after he was spotted purchasing a number of supplies used in the production of marijuana. During their four-month investigation of Pineda-Moreno, the agents repeatedly placed GPS tracking devices on the undercarriage of his car. On most of these occasions, the agents placed the device while the vehicle was parked in a public area, but on two occasions, the car was parked in the defendant’s driveway, and the agents entered his property between 4 a.m. and 5 a.m. in order to place the device.
In that case, the Supreme Court initially ruled in February that the government had no right to place a GPS tracking device without a warrant on a suspect’s car.
Then in August, the Ninth Circuit ruled authorities didn’t need one because of its view that the Fourth Amendment provides no protections against warrantless GPS tracking.
Writing on the Pineda-Morena decision in a brief for the ACLU’s website, Crump said, “It’s important to note what the court did not do. It did not rule on whether, going forward, the government needs a warrant based on probable cause to attach a GPS device to a car. Given the privacy-invasive nature of location tracking, a warrant is the constitutionally-required minimum. This decision also does not affect defendants in other parts of the country whose cases are outside the Ninth Circuit’s jurisdiction. Nevertheless, it’s crucial that Americans’ privacy is maintained in the face of ever more powerful government surveillance tools.”
FBI memos sought by ACLU
When the ACLU found out that the FBI issued two memos to agents with new guidelines for the use of the surveillance technology in July, it sent in a request to view them.
It found out about the memos after seeing a video of FBI General Counsel Andrew Weissmann speak at a legal conference in San Francisco in February.
“Is it going to apply to boats, is it going to apply to airplanes?” Weissmann asks in the video. “Is it going to apply at the border? What’s it mean for the consent that’s given by an owner? What does it mean if consent is given by a possessor? And this is all about GPS, by the way, without getting into other types of techniques.”
However, the agency is withholding the memos from the public and has failed to respond to a records request submitted by the ACLU seeking to obtain the documents.
In the lawsuit, which asks for the immediate release of the documents on the grounds that the public has a strong interest in knowing how the FBI is complying with the ruling, the ACLU writes, “How the FBI implements the Supreme Court’s decision in Jones will shape not only the conduct of its own agents but also the policies, practices and procedures of other law enforcement agencies – and, consequently, the privacy rights of Americans.”
GPS privacy legislation awaiting debate
MintPress previously reported on proposed legislation which would require law enforcement to have probable cause and obtain a search warrant when tracking cell phones via Global Positioning System (GPS) technology and using other GPS devices.
The Geolocation Privacy and Surveillance Act was introduced in Washington D.C. earlier this year by Reps. Jason Chaffetz (R-Utah) and Bob Goodlatte (R-Va.), who said the FBI’s actions were a violation of the Fourth Amendment.
The bill, currently awaiting debate from the House, the Senate Judiciary Committee and other various committees, would require police to prove probable cause to a judge and obtain a warrant before secretly applying a department-owned GPS on the vehicle of a suspected criminal or terrorist, or tracking wireless devices via its GPS feature. A warrant would also be needed to obtain tracking data from wireless companies.