You’re Not Paranoid If Everyone Really Is Out To Get You
A while ago I talked about the need that I saw for a clearer line to be drawn between the kinds of surveillance and information gathering that are legal for law enforcement to employ with and without a warrant. Unfortunately fate heard my call and replied in August with a ruling from the 9th Circuit Court of Appeals. A three judge panel(the usual makeup of a Federal Appeals bench) ruled that it is legal for law enforcement personnel to sneak into your driveway and place a GPS tracking device on your car without a warrant.
There was recently an interesting example of such surveillance being used. I’ll quickly sum it up, but I encourage you to read the article.
Basically a 20 year old US born citizen has an Egyptian father and a friend who made a blog post earlier this year that mentioned bombs and shopping malls. He found a tracking device under his car when it was at a mechanic’s. Then he posted pictures of the device in order to find out what it was. The FBI showed up in a big way to get their thing back. Way to win friends in the American Arab community.
Not having read the post at issue I really can’t say whether it actually contained enough of a threat to justify intrusive surveillance of all of the poster’s friends. Also I don’t know whether or not the FBI had a warrant to put the tracking device on Afifi’s vehicle. However, I do know that the FBI didn’t have to have a warrant to do it.
I would think that maybe, just maybe, having a Judge read the blog post and find out what was known about the target of surveillance would be worthwhile. I’m not convinced that your average 20 year old half Egyptian student who has a job and is supporting two brothers in Egypt after his father recently passed away is the standard profile of an islamofascistfundamentalistjihadiwarrior. Just saying.
The court’s ruling hinged on expectation of privacy. You do not have an expectation of privacy when it comes to the location of your car. It drives on public streets and parks in public places. Also, you don’t have an expectation of privacy in your driveway unless you put up a gate.
I think that the court’s reasoning is sound and that the ruling is consistent with current precedent and law. But I think that merely highlights the need for new laws in this area as more and more extensive surveillance becomes easier and easier.
This incident shows that the FBI is doing a quite thorough job of protecting against possible domestic terrorist threats. I just prefer that the regulations regarding how they protect us be clear rather than force investigators to fly by the seat of their pants.
I apologize to those of you who are personal acquaintances. I sincerely hope that my expression of sympathy for a surveillance target with an Arab name does not come to the attention of a professional DOJ web surfer and cause me to be labeled a jihadist sympathizer and thus cause the cars of every one I know to be tracked.
Quis custodiet ipsos custodes?
The “reasonable expectation of privacy” standard has consistently been eroded based on the simple justification that people essentially “consent” to a loss of privacy based on their acceptance, use, and even simple knowledge of increasingly intrusive technology. This applies to the assumption that people can now “expect” the police to request a suspect’s location information from their cell phone operator and people can now “expect” that thermal imaging will be used on their house. In the first instance, people “consent” by having a cell phone. For the convenience of the phone, people are giving up their personal location information. In the second instance, there is no positive acceptance by the person, it is only that the “expectation of privacy” is lowered by the general knowledge that such technologies exist.
I would suggest that these tracking cases are in the second category: because people know that the capability for tracking is out there, we should expect to be tracked, and even further, we have no reasonable expectation that we won’t be tracked.
Frankly I think that this type of circular thinking presumes the conclusion that they’re trying to reach. Technology doesn’t erode our expectation of privacy, allowing warrantless searches which then become part of the national media and ultimately pop culture erodes the “reasonable person’s” expectation of privacy.
I guess, we all know the technology is out there, what we expect is that our government will respect its people enough not to use it.