If you thought feds wanted to track you before, check out now
U.S. contends GPS data can be used to develop 'probable cause'
© 2011 WND
The federal government is arguing before the U.S. Supreme Court that police investigators and other authorities should be allowed to track American citizens in the U.S. to develop the "probable cause" needed for search warrants and other investigative tools.
But a team of civil-rights experts says such permission would pose a grave danger to freedom-loving citizens who may become the targets of the political influences that hold power at any given moment.
The Supreme Court announced yesterday it will weigh in on the controversy of police attaching GPS tracking devices to citizens' vehicles to obtain information that may lead to the "probable cause" necessary for search warrants and arrests.
"The court of appeals' decision, which will require law enforcement officers to obtain a warrant before placing a GPS device on a vehicle if the device will be used for a 'prolonged' time period, has created uncertainty surrounding the use of an important law enforcement tool," said the government's brief in the case, U.S.A. v. Antoine Jones.
"Although in some investigations the government could establish probable cause and obtain a warrant before using a GPS device, federal law enforcement agencies frequently use tracking devices early in investigations, before suspicions have ripened into probable cause. The court of appeals' decision prevents law enforcement officers from using GPS devices in an effort to gather information to establish probable cause."
In the case, agents put a tracking device on Jones' vehicle, and he later was charged and convicted of drug offenses based on information obtained from the tracking device. His conviction was overturned, however, when an appeals court panel argued the information was obtained without a warrant.
The government asked the high court to review whether the warrantless use of a tracking device to monitor the vehicle's movements on public streets violated the Fourth Amendment.
But civil rights experts at the law firm of William J. Olson of Vienna, Va., and Gary Kreep of the United States Justice Foundation of Ramona, Calif., are arguing in a friend-of-the-court brief that while the Supreme Court needs to review the case, the goal should be to protect Americans' Bill of Rights-assured protections against unreasonable search and seizure, not expand government's ability to monitor its citizens.
While the Obama administration is asking for a determination about the warrantless use of tracking units, the Supreme Court wants briefs that also address the issue of whether the government violates the Fourth Amendment even by installing such a unit.
Kreep told WND the government appears to want to track people that law enforcement thinks "might be going to commit a crime."
"This is especially important when it comes to the issue of political dissenters," he said. "Can the government justify tracking someone who they believe could be a threat to their policies?"
He said it's "not hard to imagine a government deciding people with a political belief – on the left or right – are a danger and therefore there's a need to track them."
"If the Supreme court says it's okay to allow tracking of people without a warrant, what's to stop the government from expanding that?" he questioned.
According to reports, Jones was convicted in 2008 for possessing and planning to distribute more than 100 pounds of cocaine. The GPS device installed on his vehicle provided the government with much of the information about where he went and with whom he met.
His argument that the actions were a warrantless surveillance and violated his Fourth Amendment rights failed at the district level but succeeded on appeal. The appellate court reversed his conviction.
In that opinion, Judge Douglas Ginsburg concluded, "It is one thing for a passerby to observe or even to follow someone during a single journey as he goes to the market or returns home from work. … It is another thing entirely for that stranger to pick up the scent again the next day and the day after that, week in and week out, dogging his prey until he has identified all the places, people, amusements, and chores that make up that person's hitherto private routine."
The ACLU also has advocated for more protection from electronic surveillance, citing the "technological advances" that enhance government spying on citizens.
A poll released just days ago show the WND Freedom Index, an assessment of Americans' perspectives about their freedoms, took a plunge in the latest quarter, to 45.9 – its lowest mark in the two years the survey has been conducted.
Among the questions used to assemble the ranking – where 50 is a reflection of a neutral perspective about freedoms – was, "Do you believe that government today is using technology, such as cameras, scanners, electronic health records, to become too intrusive into the private matters of Americans."
Some 75 percent of the respondents said there is a problem. Nearly 38 percent of Americans said they perceive "great intrusion" and another 14.5 percent said there is "substantial intrusion." Another 22.8 percent said there is "some intrusion."
The federal government's determination that people innocent of crimes are worthy of being watched already is documented.
WND reported in 2009, shortly after Obama took office, that a Department of Homeland Security report warned against the possibility of violence by unnamed "right-wing extremists" – people concerned about illegal immigration, increasing federal power, restrictions on firearms, abortion and the loss of U.S. sovereignty. The reported singled out returning war veterans as particular threats.
The report, "Right-wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment", said "threats from white supremacist and violent anti-government groups during 2009 have been largely rhetorical and have not indicated plans to carry out violent acts."
But it said worsening economic woes, potential new legislative restrictions on firearms and "the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks."
The report from DHS' Office of Intelligence and Analysis defined right-wing extremism in the U.S. as "divided into those groups, movements and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups) and those that are mainly anti-government, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration."
It followed by only weeks a report from the Missouri Information Analysis Center that linked conservative groups to domestic terrorism.
That report warned law enforcement agencies to watch for suspicious individuals who may have bumper stickers for third-party political candidates such as Ron Paul, Bob Barr and Chuck Baldwin. It further warned law enforcement to watch out for individuals with "radical" ideologies based on Christian views, such as opposing illegal immigration, abortion and federal taxes.
The brief filed in support of Supreme Court review of the Jones case and on behalf of the Gun Owners of America, Gun Owners Foundation, Institute on the Constitution and others said, "The petition should be granted because this and other recent cases involving GPS tracking devices demonstrate the complete inadequacy of current Fourth Amendment precedent to protect the inviolate 'right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures.'
"The government seeks to further erode the Fourth Amendment. Relying on the premise that the Fourth Amendment protects only 'reasonable expectation of privacy,' the government hopes to convince this court that, unless it is granted immunity from Fourth Amendment constraints upon the use of GPS monitoring, its ability to investigate crimes will be seriously impaired.
"The government seeks to shed any principled constraint imposed on it by the fourth Amendment – hoping to lay the groundwork to persuade judges in future cases that a defendant's individual expectation of privacy is unreasonable when balanced against the interest of society to be protected against drug 'traffickers, terrorists, and other criminals,'" it argues.
"The Fourth Amendment's meaning of 'unreasonable'
was designed as an objective, fixed rule to govern the
relationship between the government and its citizens – a direct product of specific historic events involving the abusive exercise of government power against the
liberty and property of individual citizens," it explained.
"Like the Second and First Amendments, the Fourth
Amendment secures a 'right of the people.' … This right was specifically designed to
secure the people from 'unwarrantable intrusion[s] of
executive agents of [the government] into the houses
and among the private papers of individuals, in order
to obtain evidence of political offences either
committed or designed.'"
The brief charges that the Fourth Amendment itself is specific, in that "no warrants shall issue" except on probable cause. It argues that means probable cause has to come first, before a search, or in the disputed case, a GPS tracking scenario.
Under the perspective being espoused by the government, "if there were no such privacy expectation, then the Fourth Amendment would cease to apply altogether, the government having no need for probable cause or even reasonable suspicion to place a tracking device on any automobile."
"In short, the
government demands this court sanction its
unbridled discretion to search suspected driving
activities, seizing data as to the movement of vehicles
on the public highways, in order to gather enough
information to establish probable cause to institute
criminal proceedings. The GPS technology, then,
serves the government in the same way as the
discredited general warrant – legitimizing intrusions
upon property without first having to demonstrate
before a judicial magistrate that it has 'probable
cause.' Indeed, if there is no reasonable expectation of
privacy, as the government has argued, then the
warrant requirement would not even come into play,
much less would the government be required to have
'probable cause,' or even 'reasonable suspicion' to
install a GPS on one's automobile," the argument explained.
The brief argues that even installing such devices isn't allowed.
"For the government to claim a right to stalk any
person suspected to be engaged in criminal activity is
tantamount to a claim that a concerned father might
make to keep track of a young daughter simply to
make sure that she behaves. In the American
constitutional republic, founded by 'We, the people,'
the government's relationship with its citizens was
never intended to be upended by this kind of state
paternalism. The government attempts to excuse its covert GPS
surveillance of respondent's automobile because 'the
GPS data introduced at trial related only to the
movements of the Jeep on public roads.' But once installed, the GPS gathered data while the
vehicle was on private property.
"Unlike other nations in which the governing
officials are Lords and Benefactors, under the United
States Constitution, the federal government is the
servant of a sovereign people. The Fourth
Amendment, as originally designed and purposed, was
to ensure that the government honored that
relationship, preserving the right of private property
as the enduring barrier against a totalitarian state," the brief argues.
"The Fourth Amendment was
designed to protect the political and religious
nonconformist from the use of general warrants to
suppress the freedoms of religion and the press. … Indeed, the general warrant was a primary tool
employed by the Star Chamber not only in the area of
trade and commerce, but in political and religious
matters as well. Even after the Star Chamber was abolished in
1648, the English crown attempted to suppress
political dissent, utilizing the general warrant to
confiscate whole libraries of authors of 'seditious
papers.' Such practices endured well into the 18th
century when Lord Camden issued his opinion … establishing both the property principle and the
warrant requirement of the Fourth Amendment.
