5 ms·

GPS ruling is "hard" on the FBI—and that's a feature, not a bug

123 points by ulysses 15y ago

joering2 15y ago
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! also my other comment: http://news.ycombinator.com/item?id=3635602 http://news.ycombinator.com/item?id=3635602
- mikeash 15y ago
  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.
  - joering2 15y ago
    so what was the purpose of all this circus that me and you had pay for from our taxes if FBI already been working on the back to obtain the permits?
    - mhurron 15y ago
      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.
    - mikeash 15y ago
      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.
    - Drbble 15y ago
      FBI not wasting resources pursuing non-suspects would save tax money too.
Karunamon 15y ago
>GPS ruling is "hard" on the FBI This isn't possibly the most cogent or well thought out response in the world but: Good. What's bad for the big brother wannabees is almost certainly a win for the common man.
mdkess 15y ago
"If you require probable cause for every technique, then you are making it very, very hard for law enforcement" That is a terrifying sentence.
- arkem 15y ago
  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. Edit: Clarity
- nextparadigms 15y ago
  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.
  - nknight 15y ago
    "Growing"? Look up J. Edgar Hoover and COINTELPRO. Look up the 1968 Democratic National Convention. American law enforcement has never respected the Constitution.
sedev 15y ago
""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.
- ggchappell 15y ago
  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."
  - sedev 15y ago
    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.
swang 15y ago
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.
- arkem 15y ago
  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.
kylemaxwell 15y ago
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.
- nextparadigms 15y ago
  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.
  - kylemaxwell 15y ago
    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.
    - Drbble 15y ago
      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?
Cyndre 15y ago
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)
- kytmizuno 15y ago
  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.
loverobots 15y ago
"If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR. He should be disbarred. No doubt it's easier for "law enforcement" in China and North Korea
mbeattie 15y ago
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.
- arkem 15y ago
  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).
forgotAgain 15y ago
If you require probable cause for every technique, then you are making it very, very hard for law enforcement. Thank goodness they have National Security Letters to fall back on.
tomkarlo 15y ago
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.
sethg 15y ago
As a character in an Orson Welles movie said: “A policeman’s job is only easy in a police state.”
mariuolo 15y ago
Cry me a river.

123 points by ulysses 15y ago

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! also my other comment: http://news.ycombinator.com/item?id=3635602 http://news.ycombinator.com/item?id=3635602

mikeash 15y ago
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.
- joering2 15y ago
  so what was the purpose of all this circus that me and you had pay for from our taxes if FBI already been working on the back to obtain the permits?
  - mhurron 15y ago
    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.
  - mikeash 15y ago
    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.
  - Drbble 15y ago
    FBI not wasting resources pursuing non-suspects would save tax money too.

Karunamon 15y ago

>GPS ruling is "hard" on the FBI This isn't possibly the most cogent or well thought out response in the world but: Good. What's bad for the big brother wannabees is almost certainly a win for the common man.

mdkess 15y ago

"If you require probable cause for every technique, then you are making it very, very hard for law enforcement" That is a terrifying sentence.

arkem 15y ago
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. Edit: Clarity
nextparadigms 15y ago
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.
- nknight 15y ago
  "Growing"? Look up J. Edgar Hoover and COINTELPRO. Look up the 1968 Democratic National Convention. American law enforcement has never respected the Constitution.

sedev 15y ago

""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.

ggchappell 15y ago
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."
- sedev 15y ago
  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.

swang 15y ago

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.

arkem 15y ago
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.

kylemaxwell 15y ago

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.

nextparadigms 15y ago
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.
- kylemaxwell 15y ago
  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.
  - Drbble 15y ago
    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?

Cyndre 15y ago

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)

kytmizuno 15y ago
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.

loverobots 15y ago

"If you require probable cause for every technique, then you are making it very, very hard for law enforcement," an FBI lawyer told NPR. He should be disbarred. No doubt it's easier for "law enforcement" in China and North Korea

mbeattie 15y ago

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.

arkem 15y ago
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).

forgotAgain 15y ago

If you require probable cause for every technique, then you are making it very, very hard for law enforcement. Thank goodness they have National Security Letters to fall back on.

tomkarlo 15y ago

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.

sethg 15y ago

As a character in an Orson Welles movie said: “A policeman’s job is only easy in a police state.”

mariuolo 15y ago

Cry me a river.