

GPS ruling is "hard" on the FBI—and that's a feature, not a bug - ulysses
http://arstechnica.com/tech-policy/news/2012/03/gps-ruling-is-hard-on-the-fbiand-thats-a-feature-not-a-bug.ars

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sedev
""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.

~~~
lmkg
> _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.

~~~
Drbble
Note: the FBI lawyer is representing the FBI, not "security".

------
kylemaxwell
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
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
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
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?

~~~
newman314
OnStar or undocumented GSM systems in Tesla...

See <http://news.ycombinator.com/item?id=3619088> and
[http://theunderstatement.com/post/18030062041/its-a-brick-
te...](http://theunderstatement.com/post/18030062041/its-a-brick-tesla-motors-
devastating-design) (under Prevention Measures).

"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."

------
Karunamon

      >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
"If you require probable cause for every technique, then you are making it
very, very hard for law enforcement"

That is a terrifying sentence.

~~~
nextparadigms
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
"Growing"? Look up J. Edgar Hoover and COINTELPRO. Look up the 1968 Democratic
National Convention. American law enforcement has _never_ respected the
Constitution.

------
Cyndre
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
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.

------
forgotAgain
_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.

------
swang
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
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.

------
tomkarlo
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.

------
mbeattie
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
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).

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

------
mariuolo
Cry me a river.

------
joering2
_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>

~~~
mikeash
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
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
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.

------
loverobots
_"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

