""If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR.
Of course, that's kind of the point."
I have to echo Ars there: that's the damn point. I'd like that lawyer fired and pilloried for making such a gobsmackingly idiotic statement. "Innocent until proven guilty" is far superior to the Napoleonic-law opposite, and I can't muster any sympathy for US law enforcement agencies until at the very least they stop enforcing corporate policy over law and face some accountability for how often they shoot and kill citizens.
> I'd like that lawyer fired and pilloried for making such a gobsmackingly idiotic statement.
Like it or not, ours is an adversarial legal system. To a first approximation, this case is an issue of civil liberties vs security, and as a lawyer representing the side of security, it's his responsibility to stand up for security. I agree with the ACLU's position on this matter 100%, but I don't fault the lawyer for stating that position.
Security is one of the several, contradictory responsibilities in the Constitution[1], along with personal liberties. It's something the government is supposed to ensure, and it's not wrong for a lawyer to mention the potential repercussions of a ruling towards their ability to fulfill that responsibility. Now, if it were a judge making that statement, I'd flip my shit. It's a judge's duty to balance the competing concerns, and it's the lawyers' place to advocate for one or the other. The lawyer did his job, stating the resultant effect on the issue he was advocating. And the judge did his job, deciding that despite that result, other competing concerns were more important.
[1] For a partial list of such responsibilities, check the Preamble to the Constitution, which enumerates at least 6:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
Well then, have the CIA and NSA run black ops, and don't tell anyone about it. (Or, exchange intelligence with allies if they run black ops in the US, because the CIA and NSA can't spy on American soil ... assuming this doesn't already happen).
As long as they keep everything top secret, except when they stumble on something big (then tip off the FBI), who's going to complain?
I agree with your basic point; however, I think we can and should leave the emotional arguments out of this particular issue.
The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated. If no law enforcement agency enforces corporate policy over individual rights, do they all then get the right to invade privacy without a warrant? No, they don't.
My "should" above, is because it leads to polarization. Lots of people are not sympathetic to police, but lots of people are, and we don't want to nudge the latter in the direction of downplaying constitutional safeguards.
In my ideal world, law enforcement would never violate the standards they are bound by, and everyone would say, "I am sympathetic toward law enforcement agencies." And everyone would also say, "I do not grant them the right to invade privacy without a duly issued warrant."
I think that your clarification and amplification is a very good one overall, but I have a disagreement.
"The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated."
However, that's clearly not the only thing that they're bound by: there's an evolving discourse of law, and it's especially evident in the FBI lawyer's statement that many in the law enforcement community have a fundamental conflict - that they want to be Judge Dredd, not Sergeant Joe Friday. Law enforcement officers are bound by multiple and conflicting directives, and that means that they have no choice but to choose, to exercise discretion about which of those is most important. That's normal for most professions, but I argue that we should hold to far higher standards the people who get to legally use force.
My favorite example is micro-scale: speeding isn't actually very dangerous among the things you can get ticketed for while driving, but it makes up the lion's share of the tickets handed out because it's easy to enforce. You can point to a specific number from a mechanical device and say "there: that proves that this person was speeding." Other driving behaviors, often more dangerous, can't be so directly quantified, and so are more of a pain in the ass to enforce - and are enforced less. The conflicting directives result in a sub-optimal outcome.
Law enforcement officers in the US are not bad people: they're normal people, like you'd expect. The problem is that when you give normal people power without accountability, evil results. As the FBI shows in the linked article, they vigorously resist any effort at making them accountable - which is why it's so critical to heap on the accountability. Further, bringing me back to agreeing with you, the standards that they're bound by and accountable to, should be as clear as possible. The fuzz in the directives is part of the expanding power of law enforcement agencies, and we should acknowledge and actively work to counter that tendency towards expanding power without expanding accountability.
Some law enforcement officers are not bad people. FTFY. Just like some of the general populace are not bad people.
Given that the police is a profession that enables the use of deadly force, they absolutely need to be held to higher standards. But at the same time, it's almost a fundamentally flaw premise. Look at it this way, police have incentive for crime to continue (hence the neverending war on drugs). It allows them to get paid more, argue for more budget etc.
Unfortunately, expanding accountability at this point is far too little too late as organizations have been pretty much doing whatever they want in the name of security (Exhibit A: TSA). The system really needs a major reset in order to get back some semblance of actual balance.
Except once you're in their sites, "law" enforcement agencies are basically paid to casually ruin your life as their day job, while you must expend considerable money and time to even defend yourself - never mind the other damages they cause without recourse. When the innocent victims of their antics are fully compensated as a matter of course (ie they stop externalizing the costs of their overzealousness), then perhaps said agencies will be worthy of respect.
I listened to the NPR story when it ran. The FBI explained that they use these devices to establish probable cause, which they'd then use (ideally) to get a warrant for more invasive processes.
But as pointed out, if >90% of your cases already can meet that threshold according to a (theoretically) independent judiciary, then you don't really have a problem. Perhaps the other 10% reflected the abuses we want to prevent, or perhaps just sloppy police work.
Either way, the warrant requirement is a security control against abusive law enforcement. After all, by their own reasoning, if they've done nothing wrong, then they've nothing to hide (from a judge), right?
Interestingly, the story concluded by noting that the FBI would probably just depend more often on cell phone tracking records, which companies will often provide in response to a prosecutorial subpoena even without a judge's signature.
But isn't that sort of illegal, too? Invading someone's property to find something incriminatory, and then to accuse them of what you found? If not, then they could just randomly visit anyone's home and try to look for pirated software or music.
Their previous (and now illegal) idea was to establish a suspect's whereabouts at a given time and thus to show that he was visiting places where a crime likely was committed. Now that doesn't work unless they assign agents to follow him, for precisely the reason you specify: it's an illegal search to enter their property (automobile) and attach the GPS tracking device.
Cell phone records, while controversial, are generally business records of the wireless telco and thus don't always enjoy the same protection. Personally, I'd like to see them get similar requirements for disclosure to law enforcement, but in the current political climate that seems unlikely.
Isn't that like saying that your car's movements records of its movements are business records of the manufacturer, or of OnStar, and subject to subpoena?
"After the first 500 Roadsters, Tesla added a remote monitoring system to the vehicles, connecting through AT&T’s GSM-based cellular network. Tesla uses this system to monitor various vehicle metrics including the battery charge levels, as long as the vehicle has the GSM connection activated4 and is within range of AT&T’s network. According to the Tesla service manager, Tesla has used this information on multiple occasions to proactively telephone customers to warn them when their Roadster’s battery was dangerously low.
In at least one case, Tesla went even further. The Tesla service manager admitted that, unable to contact an owner by phone, Tesla remotely activated a dying vehicle’s GPS to determine its location and then dispatched Tesla staff to go there. It is not clear if Tesla had obtained this owner’s consent to allow this tracking5, or if the owner is even aware that his vehicle had been tracked. Further, the service manager acknowledged that this use of tracking was not something they generally tell customers about.
Going to these lengths could be seen as customer service, but it would also seem to fit with an internal awareness at Tesla of the gravity of the “bricking” problem, and the potentially disastrous public relations and sales fallout that could result from it becoming more broadly known."
Minority Report used "pre-cogs" to establish probable cause. Just saying that the logic presented by said agencies are dubious at best, flawed at a minimum.
I don't think that the quote is particularly worrying.
I think the FBI lawyer is pointing out that as the scope of what constitutes a search expands the harder it becomes to establish probable cause in the first place.
I agree with the article, that if 90% of the affected GPS trackers could demonstrate probable cause to get a warrant then the FBI doesn't really have cause to complain (about this one ruling). However, I don't think that invalidates the quote.
I think the quote is literally true and shouldn't be taken as anything but a FBI lawyer talking about the limitations that the agency faces but like the article says the limitations aren't necessarily a bug.
It seems that a certain culture is growing inside law enforcement agencies, one that doesn't respect the spirit of the Constitution anymore, and they just try to use whatever loopholes they can to arrest someone. Even the OWS protesters are being arrested on simple technicalities, without common sense.
"Growing"? Look up J. Edgar Hoover and COINTELPRO. Look up the 1968 Democratic National Convention. American law enforcement has never respected the Constitution.
What I don't like about this is that they were allowed to turn the devices on again that were illegally placed in the first place. They should have had to turn them off forever because they were illegally placed. I would compare this to collecting evidence without a warrant, getting the warrant and then using that evidence. (which as far as I know is grounds to have the evidence thrown out)
They could be throwing out all previously collected data and now just using new data collected after the warrant was obtained. As far as I know, the FBI takes pretty seriously collecting evidence outside the scope of warrants.
Is anyone else more annoyed by the 250 number? That means 250 people were essentially being surveyed upon illegally.
Granted I'm betting some of those 250 were "bad people" but considering the previous articles about these devices, I'm willing to bet a lot of those 250 people weren't even close to being dangerous and were just a waste of taxpayer money.
If you're worried about taxpayer money I don't think that turning off those 250 devices will change much. If the FBI is still keen on surveilling those targets they'll do it without electronic help.
This means that the same level of invasion of privacy will occur (potentially more since physical surveillance can gather more information than a GPS tracker) but with less court approval and more cost.
Of course if we assume that the FBI was only tracking those 250 suspects because it was easy to do so then you're probably correct that turning them off will be a net saving to the tax payer.
Is there any implication here when it comes to using traffic cameras or vehicle-mounted plate scanners to monitor vehicle location? Or will they just switch to doing that more often?
In some ways that seems more broadly invasive than GPS, in that it captures information about thousands of individuals who aren't being specifically observed.
They seem to miss the point that they shouldn't be tracking people "the old fashioned way" without a warrant either. You track people because you think they are guilty of a crime and you want to find the details. Not because someone might do something someday.
Police shouldn't need a warrant to observe people from public property (or in any situation where you don't have an expectation of privacy), in the same way that citizens don't violate the law by observing people or places from public property (barring stalking laws).
In other words, they may have turned off 3,000 devices the day the Supreme Court issued its ruling, but they turned about 2,750 of them back on soon afterwards.
Truly Wild Wild West. Nothing will teach them that there need to stay under the law just like anyone else.
Mr. Meuller: why don't we go one step further; how about proposal to build safe and secure prisons and just simply lock everyone in??!! Won't that actually stop every possible crime from happening?? I mean: all the thefts, murders, rapes, it all can be avoid and stopped if you kindly please lock us all in!
Maybe I misunderstand the point of your comment, but they turned 2,750 of them back on because they were able to obtain warrants for those permitting them to continue the surveillance. There's nothing illegal about that, and it shows they're sticking to the new ruling and to the law.
There's the ~250 or so that they had to turn off permanently because they couldn't get warrants for them, presumably because they could not show probable cause.
The purpose was to require and remind the FBI that they too have to follow the law of the land.
They should have had to get a warrant before they put any tracking device anywhere (and I'm willing to bet they knew that) and they should have been smacked down for every instance where they didn't.
Of course, that's kind of the point."
I have to echo Ars there: that's the damn point. I'd like that lawyer fired and pilloried for making such a gobsmackingly idiotic statement. "Innocent until proven guilty" is far superior to the Napoleonic-law opposite, and I can't muster any sympathy for US law enforcement agencies until at the very least they stop enforcing corporate policy over law and face some accountability for how often they shoot and kill citizens.