Though many legal scholars argued that the Supreme Court’s recent ruling that attaching GPS units to a vehicle requires a warrant was a very narrow one that would not reign in the government’s surveillance power much, ABC News reports that the FBI has responded by turning off about 3,000 such units already.
A Supreme Court decision has caused a “sea change” in law enforcement, prompting the FBI to turn off nearly 3,000 Global Positioning System (GPS) devices used to track suspects, according to the agency’s general counsel.
When the decision-U.S. v. Jones-was released at the end of January, agents were ordered to stop using GPS devices immediately and told to await guidance on retrieving the devices, FBI general counsel Andrew Weissmann said in a recent talk at a University of San Francisco conference. Weissmann said the court’s ruling lacked clarity and the agency needs new guidance or it risks having cases overturned.
As I noted at the time, there was inherent ambiguity in the ruling because, while the outcome was unanimous, there were several concurring opinions with different legal positions on the issue. But the FBI is apparently focused on the broadest of those opinions:
Justice Antonin Scalia, writing for a five-member majority, held that the installation and use of the device constituted a search under the Fourth Amendment based on trespass grounds. The ruling overturned Jones’ conviction.
“It is important to be clear about what occurred in this case,” Scalia wrote. “The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a ‘search’ within the meaning of the Fourth Amendment.”
It was a narrow ruling only directly impacting those devices that were physically placed on vehicles.
Weissmann said it wasn’t Scalia’s majority opinion that caused such turmoil in the bureau, but a concurring opinion written by Justice Samuel Alito. Alito, whose opinion was joined by Justices Ruth Bader Ginsburg, Stephen Breyer and Elena Kagan, agreed with the Court’s conclusion in the case but wrote separately because his legal reasoning differed from the majority.
Alito focused not on the attachment of the device, but the fact that law enforcement monitored Jones for about a month. Alito said “the use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy.” He also suggested that Scalia’s reliance on laws of trespass, will “provide no protection” for surveillance accomplished without committing a trespass.
“For example,” Alito wrote, “suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased?”
In his talk at a University of San Francisco Law Review Symposium, Weissmann suggested that Alito’s concurrence means that several members of the court are concerned with long-term surveillance by technologies beyond GPS systems and that the FBI needs new guidance in order to ensure that evidence does not get thrown out.
“I just can’t stress enough,” Weissmann said, “what a sea change that is perceived to be within the department.”
There is some reason to be skeptical about this claim, of course. It’s the FBI itself saying that it’s now working overtime to comply with the law, something it very rarely does. But Weissmann is certainly right that they risk having cases overturned if they don’t comply, so that is at least some incentive to do things the right way. But this is how the 4th amendment is supposed to operate. All they have to do is show probable cause to a judge and get a warrant and they can then do the tracking. And if it involves a terrorism case, they can even do this in secret with the FISA court, which has approved about 99.99% of all warrant requests. If the government can’t meet even that standard, they shouldn’t be tracking anyone, period.