For my little branch of this comment thread, can we leave aside the FBI's reason for planting a GPS monitor? Just assume the FBI had no reason whatsoever. That they did it randomly. I tend to agree that in this case, they didn't seem to have a good reason. But, then:
Exactly what is the damage this guy suffered? What's he suing over?
Why should it be unconstitutional for the FBI to use technology to do something they can clearly already do without technology? It is not a violation of your civil rights for an unmarked car to follow you around and watch you.
There clearly is a line here, so let me foreclose on that response right up front. Yes, it would be unconstitutional if the FBI tried to track all of us, by making coded GPS monitors mandatory on all cars.
But in this case, if they couldn't plant the monitor, they could just follow him. He'd have no case. It's almost exactly the same loss of privacy. So why it such a big deal in the GPS case?
"Why should it be unconstitutional for the FBI to use technology to do something they can clearly already do without technology?"
I doubt he has a case, but following/watching is passive observation and the tracker manipulates private property, and I believe the latter is more severe. What if they installed a laser tripwire, without a warrant, across someone's property to measure when they come and go? If both endpoints are on public property, it seems reasonable. It's just a passive observation from public property. But installing it right on their doorstep? Inside the house's threshold? Or on every doorway in the house? In that progression, there's clearly a point where it is no longer constitutional without a warrant. Using an equivalence with the practical result - determining when people come and go - suggests it's OK to install a device on the doorstep, since no extra bits of information are gleaned as opposed to watching from the street. But actually entering property to make modifications is no longer passive, which is where I take issue. After all, I can't paint someone else's garage more tastefully, no matter how ugly it is! I believe the same threshold should apply to your personal car, even though I doubt it does.
If technology makes passive observation efficient, then that's great. But planting a tracking device on the car is no longer passive observation.
Actually, this is something of a new problem in privacy considerations - broader than the strict "is a GPS device on my car illegal" question.
A great deal of what we call "privacy" - in the common English meaning of the word, rather than the legal definition - consists of other people lacking information about our movements and actions. However, in that meaning, most of our privacy comes from the fact that 1) nobody is actively attempting to gather information and 2) it would be very difficult for them to do so if they tried.
With technology, it is both dramatically easier to collect information, and dramatically easier to convert that information into a usable form (whether for sale, or for leverage in a government action).
So although it's true that the technological method by which the FBI gathers information normally does not affect their legal right to do so, the standards under which the FBI operates were made when gathering information was difficult enough that stricter standards were not required.
That's why it's a big deal. Normally they wouldn't bother to follow him. Normally they wouldn't have the time or money. As such, it was OK to give the FBI broad freedom to follow someone in an unmarked car, because the check on the FBI's ability to abuse that authority was its lack of money and manpower. Now that technology has solved the FBI's lack of money and manpower, the legal question is much more relevant.
It costs US$300 000 a year to tail his car 24 hours a day, 7 days a week, using human investigators. That's a pretty substantial check on the FBI's surveillance ability, independent of any court. They probably wouldn't have done much surveillance of the guy without a little more review of his activities.
I'm guessing a satellite transponder with GPS costs about US$2000, and a cellular-network transponder with GPS might cost US$200. At that price, it may become necessary for courts to step in to provide a level of oversight that the simple costs of surveillance no longer do.
You need to consider the goal of the Constitution: to prevent tyranny. Everything in the Bill of Rights was put there to thwart a known tactic of tyrants. Today there are new tools that give the tyrants new tactics, and we need to make sure our Constitutional protections keep pace. It may be that the courts will decline to extend our existing protections, since they don't literally apply; but it's a good first step.
>Exactly what is the damage this guy suffered? What's he suing over?
That's what we are trying to find out!
He was being spied on because he has a foreign sounding name -
is he now on a no-fly list?
is he on a secret do-no-hirelist for defense companies? for telecoms companies? for any companies with govt contracts?
Does the FBI secretly OK who state colleges accept?
If being secretly tracked by the secret police is no real damage - at what point is there damage? When the cattle trucks arrive ? Or when they get over 6Million
> That's what we are trying to find out! He was being spied on because he has a foreign sounding name
That's the worst part, fixating on such a useless thing.
Imagine if the US and Canada went to war, I as a Canadian of Irish heritage could easily blend in, meanwhile the French with accents would be targeted. Meanwhile the people who don't fit a stereotype are planting bombs.
It's incredibly unprofessional, amateurish and ignorant for government security agents to use such superficial reasons to think a person is a threat.
It is not a violation of your civil rights for an unmarked
car to follow you around and watch you.
Surveillance without probable cause most certainly is a violation of your civil rights. Following you 'everywhere' includes following you on locations where you have the right to freedom from unwarranted 'searches' under the Fourth Amendment. For instance, the Fourth Amendment has been ruled to cover the curtilage[1], which means the FBI is not allowed to continuously watch you in your garden from said unmarked car, unless they have a warrant to do so.
I don't know that I've got any legal scholarship to back me up, but that never stopped me from having an opinion.
It seems to me that our rights acknowledged by the 4th and 5th Amendments boil to a right to "Freedom from Scrutiny" (and I think this is also implied by the 1st Amendment). That is, the government should pay us no mind at all, unless it's come to their attention that there's something illegal going on.
I think that viewing things through this lens clears up a lot of ambiguity. It holds together as a coherent philosophy and resolves a lot of potential uncertainty, when the law is confronted with new technologies, etc.
I was once followed by the FBI (without my knowledge). They were following someone I knew and I was at their house frequently. They did this for quite some time. I ended up having to meet with an agent to answer his questions. I made sure to meet him at lunch time so he could buy me lunch if he needed me. It ended up being at a coffee shop. He explained to me a situation and wrapped the case (it was a false alert). He promised I would never hear from him again or his agency, but with these guys who knows. I felt a bit weird, but one thing is for sure, if the FBI is following you at least you have somewhat of a protection.
Just one point from the international perspective: Surveillance without reason or evidence is not legal everywhere. Just following someone around without reason and evidence would be illegal in Germany.
In short, existing laws are ambiguous and the courts are divided on how to apply them. A solid test case like this one could very well end up in the Supreme Court.
I don't think it's an issue of technology. If they rotated satellites just to track him, I wouldn't have an issue. I think it's an issue of being invasive. They invaded his property to attach the device. The device remained inside his property. Meanwhile, either a low-tech tail, or some high-tech satellite, or security camera wizardry straight out of 24, is non-invasive.
Your 'response foreclosure' is confusing to me - I'm not sure on what grounds you decided that the FBI putting mandatory GPS on all cars was unconstitutional, but putting a GPS on any individual car might not be.
Maybe that was confusing, I'll say it a different way: your grounds for deciding that planting a GPS on an individual car was constitutional was that the effect could be duplicated by physically following that car. Is there some sort of physical limit that I'm missing to that argument? The FBI could physically follow around all non-FBI cars, and they would even run into economies of scale by just monitoring intersections and making paper records of every car that passed.
How exactly did you decide that tracking every car with GPS was not constitutional?
>Exactly what is the damage this guy suffered? What's he suing over?
This argument reminds me of those who say "you should not care about privacy if you have nothing to hide". Anyway, he is suing to bring more attention on the case, to make people aware that in the USA it's enough to be brown and write a tongue-in-cheek comment on reddit to get the FBI on you.
=
>But in this case, if they couldn't plant the monitor, they could just follow him. He'd have no case. It's almost exactly the same loss of privacy. So why it such a big deal in the GPS case?
The reason is that technology has progressed MUCH faster than law. What was not possible or expensive to do 50 years ago is cheap and easy now and can be done in a mass scale. So give some time for the privacy laws to catch up to the potential abuses.
Eg. If a bunch of retail stores, corner shops and 711s got together to scan car plates using ANPR(http://en.wikipedia.org/wiki/Automatic_number_plate_recognit...) and upload to a server which will make it searchable for paid subscribers(think employers, spouses/BFs/GFs, parents, stalkers) of the site, would that be okay?
After all, it's public data that they're gathering by just 'looking' on public roads. What would be your stance on this? And does it make it different if done by the government?
If such technology were available when the constitution was written or amended early on, would such things be banned?
If this is how they react to a comment on Reddit, just think of how much quicker or more drastic their reaction to a similarly provocative comment on a site with the ominous name Hacker News.
("ominous name": Although the word Hacker is not ominous to most of us, it is to almost all non-technical members of the Washington establishment.)
Prosecutor: "Is it true Mr. Hollerith that you self-identify as a hacker and that you frequent a community of hackers known as Hacker News?"
You: "Yes, but..."
Prosecutor: "A simple yes or no will suffice."
You: "There are questions that can't be answered with a simple yes or no. For example, you could ask me if I have stopped beating my wife."
Prosecutor: "Have you, Mr. Hollerith?"
In short, a jury of "peers" is not going to be comprised of peers. On average they are people who have a poor grasp of logic, statistics, and the personality of hackers. They'll judge you based on the way you look, talk, etc... And since you are all Mr. Smarty Pants, members of the average jury will not trust you, like you, or relate with you. As such, hacker types have a major disadvantage in court, even before tossing around labels that are considered as "shady" by the general public.
Is it permissible in American courts to require the prosecutor to unambiguously define "hacker" before answering?
If not, can you feign ignorance of the definition and explain that you are thus literally incapable of providing an honest & informed answer; and since you are under oath, require a definition before answering?
All these goof-ups by the FBI don't paint a pretty picture about the agency at all and I'm surprised some news agency isn't up in arms about their funding and incompetence like they are with the teachers' unions.
Its founding principle was that there are baddies out there who need a special force of investigators who have powers far exceeding the regular police and who collect dossiers on suspicious citizens rather than simply waiting for crimes to occur and then investigating.
In a certain sense, they aren't being incompetent, they're doing exactly what they were designed to do. The problem isn't the execution, it's the mandate.
I have no problem with the mandate. It's the clear lack of competence in intelligence gathering that bothers me. Who honestly considers anything said on reddit to be of any significant value to state security matters? They might as well throw a dart on some board and make decisions that way if they are so desperate as to use postings from reddit.
I'm sorry I'm late to this discussion, but: some people seem to be saying, "what's the harm? what damage did he suffer?".
I'd like to point them to Kyllo -vs- United States http://en.wikipedia.org/wiki/Kyllo_v._United_States . Basically, the USSC ruled that taking a thermal image of a house amounted to "unreasonable search". Even though the heat rays emanating from the dwelling can be considered "public knowledge", the cops can't use it to then conclude that there's a grow op in the house.
So, just because something is sorta "public" it doesn't mean the cops can reach for it.
Wouldn't it be a little scary finding such a device in your car? At first, you might wonder if it's linked to a a bomb. Then if you consider it's a tracking device, who is actually following you? I'm sure it's enough to give some people at least moderate anxiety and others possible severe. Who knows what else.
"His lawyers say Afifi, who was born in the United States, was targeted because of his extensive ties to the Middle East — he travels there frequently, helps support two brothers who live in Egypt, and his father was a well-known Islamic-American community leader who died last year in Egypt."
This is part of the story that TechDirt left out in favor of the inflammatory but misleading man-persecuted-over-Reddit-comment angle.
Replace the words with whatever country is 'scary' to you, and you've got probable cause!
"His lawyers say Wing, who was born in the United States, was targeted because of his extensive ties to asia — he travels there frequently, helps support two brothers who live in China, and his father was a well-known Asian-American community leader who died last year in China."
This sort of comment I always assume is double-talk (government-ese maybe) for someone who they know has close ties to terrorists. I'm guessing one of the family has been undertaking some "terrorist" activities and that makes it look bad for Afifi as he's sending money home. Of course this is speculation and Afifi himself wouldn't likely know if it were true or not so I have no way of knowing either.
Martin Luther King was a "well-known Christian-American community leader". That's how you should read it.
That you think otherwise means they already managed to indoctrinate you that far, to accept the seeds of doubt and mistrust they try to plant. That way, however it turns out, they are always right.
That's how you should read it. That you think otherwise means they already managed to indoctrinate you that far...
What doctrine are you beholden to that gives you the right to declare someone "indoctrinated" if they don't interpret things exactly as you do? Is no man free to think for himself?
I think I've mistook the source of the comment I assumed that the label of "Muslim-American activist" was placed by the FBI when speaking to the reporters (it may have been but that's not how it's reported). I apologise for that error.
That said.
WRT equivalence of mentioning an "Christian-American activist" and "Muslim-American activist" I can't see how we can establish this nor even come close there are too many variables to adjust for. The sunnah gives a mandate for terror activities against those who don't accept Islam - Mohammed was a war lord who used deadly force to further his aims. Whilst the life of Jesus gives no such model (quite the opposite as I see it). Moreover you'd have to base the analogy around a foreign country into which Christians (acting in that capacity) had moved to enact terror activities.
"Afifi's father, an Islamic-American activist, died a year ago in Egypt. It is not clear what the circumstances of his death were, or if this was the reason for the FBI's investigation of Afifi."
Subsequent reports (the ones I found) appear in Wired and CBS News and transmute this to being "community leader" instead of activist [no biggie, just saying] and fail to mention any lack of clarity about his death. They do (eg Wired, http://www.wired.com/threatlevel/2010/10/fbi-tracking-device...) flesh out other details.
I couldn't really find much about the father and less about the brothers (not even in Egyptian news sources like Al-Masry Al-Youm who don't appear to have run the story at all). SF Bay MCA mention him as Ala Afifi in respect of a donation to his "trust fund" (http://docs.google.com/viewer?a=v&q=cache:u2eBtfghTeAJ:w...) but nothing else I could really see.
This is an incredibly important point. Perhaps more importantly, African American (or Black, at that time) community leader.
To the semi-OP: Don't look at what the government fails to explain and do their work for them. Don't take what they say and then look for the hidden context -- in their favor.
It's THEIR job to justify the suspicious-looking things they do, NOT ours. They answer to us.
If they only say he's a community leader, then ask yourself: "Why the hell are you monitoring community leaders? You gotta do better than that."
Because either A) There is a genuine reason and they're now foolishly refusing to say it, which is ludicrous at this point now that it's out in the open. Or the more likely B) It's a load of crap and they don't know what they're doing, they're wasting time, money and civil rights monitoring people who have done absolutely nothing wrong.
Whether he was put under surveillance for traveling frequently to the middle east or because of a misinterpreted comment, that seems both to be about equally bad. There is of course always the caveat that the FBI might have had other credible evidence but if not that at least should be a civil rights violation. (Should be. I obviously know too little about the law to tell whether it actually is.)
The difference is that investigating someone who fits a particular behavioral profile is something that a reasonably competent organization might do, while investigating someone over nothing but a Reddit comment that he didn't even write would be stupid. When even the subject of the story describes it as the former, reporting it as the latter is sloppy at best, fallacious pandering at worst.
See, what bothers me about this is that instead of highlighting the actually interesting legal question of whether installing such GPS devices is a violation of civil liberties or should require a warrant--the things Afifi is actually suing over--TechDirt (among scores of others in the giant web echo chamber) just throws this into the "look at this fucking government" bin where it does little more than reaffirm, 2 minutes hate-style, whatever the reader already believed.
Where I said "misleading" you seem to be interpreting me as saying "false". The comment is relevant, sure, but leaving out everything else changes the interpretation of the story significantly.
I'd rather say they are being less inflammatory than possible. That a single Reddit comment triggered the placing of the device is silly in itself, but once you realize that only happened because he was already under surveillance for the unacceptable reason of having 'extensive ties to the Middle East', it just adds insult to injury.
What I don't get is why he had to give it back. Since the FBI stuck it to his car isn't it his now? When they came to demand it back he should have refused. Are they going to arrest him for harboring stolen property? They gave it to him.
If I recall correctly he did ask for proof that it was theirs before he would hand it back, but I seem to remember they refused and basically threatened him into returning it.
On the reddit thread way back, many people pointed out he could be charged with destruction of government property. I believe a few people even had precedences of this actually happening. But I'm not going to dig through the thread, so I'll mark my own comment as [Citation Needed].
His mechanic noticed it when doing maintenance work (it was hidden improperly and was an older, bulkier model). Then the kid posted a picture of it to Reddit and asked what it was. Shortly after the FBI showed up at his house and asked for it back.
Leaving aside the particulars of this case since all we've heard so far is what his lawyers are saying happened, the troubling issue here is that somehow attaching a GPS device is an action that does not require a warrant.
I can accept the argument that it doesn't gather information that couldn't be gathered by other warrantless activity such as following him with agents.
But it also MUST require that they entered the personal property of his car. You can't search a car without consent or a warrant, why can you enter it without either?
If they can plant a GPS in your car, what will stop them from planting a microphone or video camera in your bedroom? Wiretapping is so common nowadays that we don't even complain any more.
The consensus here seems to be that the FBI crossed the line from passive to active tracking, and should have needed a warrant, when they entered his property to place the GPS device into his vehicle.
Tracking you by something like GPS on your cell phone doesn't require physical interaction with your property. The effect is similar, though. What's the difference?
Open information systems (the internet) leads to all sorts of changes in closed system (Middle Eastern governments, State Departments, the FBI). The internet is fun again.
Exactly what is the damage this guy suffered? What's he suing over?
Why should it be unconstitutional for the FBI to use technology to do something they can clearly already do without technology? It is not a violation of your civil rights for an unmarked car to follow you around and watch you.
There clearly is a line here, so let me foreclose on that response right up front. Yes, it would be unconstitutional if the FBI tried to track all of us, by making coded GPS monitors mandatory on all cars.
But in this case, if they couldn't plant the monitor, they could just follow him. He'd have no case. It's almost exactly the same loss of privacy. So why it such a big deal in the GPS case?