
EFF to Court: Lifetime GPS Tracking Violates the Fourth Amendment - DiabloD3
https://www.eff.org/deeplinks/2015/12/eff-court-lifetime-gps-tracking-violates-fourth-amendment
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GauntletWizard
I'm 100% for lifetime GPS tracking of certain classes of criminals - It's a
far sight nicer than lifetime imprisonment, and that is a legitimate
punishment.

But the EFF's point here is solid: This wasn't a punishment handed down as
part of a sentence. This was added to someones sentence ex post facto, and
that is not cool. It is fairly cut and dry; You only are sentenced according
to the law at the time you committed the crime. Adding new punishments, no
matter how well intentioned, is unconstitutional. I don't even have to cite an
amendment, it's in article 1.

~~~
Eldarrion
Completely agree with this point. It's completely ridiculous to retroactively
apply laws.

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newjersey
HN makes me sad sometimes. It was less than 24 hours ago that we criticized
India for talking about applying the new law concerning crimes committed by
minors on a high profile case.

Now, not even a day later we are talking about doing something just as insane.
:(

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Eldarrion
This is the first time I hear of this discussion. That said, are we talking of
applying a new law to a situation that has yet to pass sentencing? Then sure,
a new law can be applied. If they have already passed sentencing then too
little too late.

~~~
newjersey
No, it is too late and thankfully the justice system has not entirely failed.
However, I am still appalled by the court's statement:

> On Monday, India's Supreme Court dismissed an appeal to stop his release,
> saying it "shared" the concern of most citizens but its hands were "tied" by
> the law.

[http://www.bbc.com/news/world-asia-
india-35149409](http://www.bbc.com/news/world-asia-india-35149409)

I hate that politicians all around the world are more than happy to keep the
people occupied in these things that don't affect a lot of people.

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mindslight
It's amazing that we take for granted our law generation process being so
broken, that our only hope at sanity is to appeal to the closest commandment
from the Bill of Rights.

~~~
rayiner
Anecdote: the other day I was walking back home from dropping my daughter off
at daycare, through a nice residential neighborhood. I see a guy sitting on
the sidewalk with a cop standing over him. I gingerly pass them, and about 20
feet away I pass three old people discussing the situation. I can't make out
what they're saying, but I hear the phrase "sexual predator" several times.

So I'm not convinced that this isn't the law generation process working
exactly as intended. We keep appealing to the Bill of Rights because we just
don't like the outcomes democracy gives us.

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13of40
It's almost (but maybe not quite) a moot point, since the status quo in our
society is to carry around a GPS tracking device 24/7, and the authorities can
pull the records from it at a whim. Heck, I'm typing this on one.

~~~
biafra
There is a difference. You decided to carry that tracking device with you. You
can decide to pause or stop carrying it.

~~~
tjoff
Though, the instant you do you are flagged.

Just as although paying cash is fine, but actually paying with cash is highly
suspicious - why would you ever want to do that if you have nothing to hide?

Coming soon to a future near you.

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anigbrowl
This is a very tricky issue. I'm against the notion of perpetual punishments
in general, but some kinds of sexual behavior are compulsive and historically
the response to that has been to detain people who exhibit dangerous behaviors
of this sort indefinitely in a psychiatric facility, which is obviously even
more restrictive of liberty than tracking their whereabouts.

Mind, I'm not saying Wisconsin's law is well-drafted or demonstrated to work,
just observing the existence of a conflict between individual rights and
public safety in a context where the risk is very hard to measure.

~~~
belorn
If a person has a psychiatric illness that makes them hurt others, then
treating them in a close facility is right and proper. Its no more restrictive
of liberty than any other involuntary hospitalization.

If a past criminal moved next door, it should not matter what kind of
uncontrolled violent behavior they had. Is it that much better to know that
instead of sexual violence criminal, you get a person who slashed a knife into
a innocent person? What if they shot a person, or kicked and stomped on
someones head and cause irreversible brain damage? If Wisconsin's law is good,
then why not apply it to all criminals that has been found guilty of serious
violence?

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tptacek
The plaintiff in this case is a serial molester of young children, convicted
twice, paroled, and sent back to prison when he acknowledged contact with two
kindergarten-aged children (a grave violation of the terms of his parole) and
admitted to considering molesting them.

There's not much more justice in committing him involuntarily, nor would we
prefer to incarcerate him for the rest of his life, if we can find other ways
to prevent him from coming into contact with children.

~~~
belorn
> There's not much more justice in committing him involuntarily

In what way are you describing a healthy person? Would we call a person as
being healthy if they had a problem with being aggressive, repeatedly
committing assault, convicted several times, and admitting that they can't
control their aggression and intentionally goes and look for people to beat
up?

I think such person is likely to have a medical condition, psychological or
actually brain damage, and treatment (involuntarily if needed) is best for
both the individual and society. Trying to "find other ways to prevent them
for coming into contact with people" would be horrible bad idea and unlikely
to work.

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scrupulusalbion
Requiring someone to wear an ankle monitor for the rest of their life sounds
bonkers. You would either have to give him/her the charger or mandate that
he/she return to a police station or court house to have the device recharged
perhaps every month. If you gave them the charger, couldn't the person just
"forget" to charge the device and then drive out of state?

From the Wikipedia page on Ankle Monitors [0]:

>GPS units are similar in design, but the offender also carries a GPS cell
phone unit that receives a signal from the ankle unit, or both functions may
be combined into one ankle unit. Persons subject to a restraining order may
also be subject to GPS monitoring.

[0] =
[https://en.wikipedia.org/wiki/Ankle_monitor](https://en.wikipedia.org/wiki/Ankle_monitor)

~~~
superuser2
Parolees are already subject to many arcane obligations, such as a rigid
schedule of meetings and phone calls with the parole officer. The punishment
for a single failure is going back to prison for the remainder of the
sentence. You could presumably make regular charging of the device a similar
requirement. Low battery indicator for too long = back to life in prison.

~~~
biafra
But that seems unjust. Since in this case they served their sentence already.

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tptacek
If life imprisonment isn't unconstitutional, why is lifetime GPS tracking
unconstitutional?

I'm not saying I support lifetime GPS tracking; just that I don't understand
the argument.

~~~
Eldarrion
The argument is that they already served their sentence. They are free to do
as they will. This is effectively in addition to their sentence, retroactively
changing the laws. Imagine if suddenly there was a law that said you were to
have your tongue cut out if you lied, and that it applied to lies told in the
past. How would you feel about that?

The point is, punishments can only be applied to sentences pronounced from
this point on, not ones that have already been served or are in the process of
being served.

~~~
afarrell
This argument seems based much more in Article 1, Section 9, Clause 3 of the
original text of the constitution. Quoth: "No bill of attainder or ex post
facto Law shall be passed."

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tptacek
The ACLU and EFF seem clearly to be in the right here, and the district court
ruling seems pretty straightforward. Here's a quick sketch of the facts of the
case:

* The plaintiff is a serial child molester, convicted once in the late 80s, again in the 90s (for which he served a 10-year sentence), paroled in the early 00s, and had his parole revoked after he sought contact with 4-5 year old children and admitted to considering molesting them.

* Following his sentence, he was committed involuntarily to a psychiatric facility after a hearing with a jury found unanimously that he was a danger to the community and likely to offend again.

* As was his right, he annually challenged his commitment, and in 2010 had an evaluation that determined that while he was more likely than not to offend again, his condition didn't then meet the standard required to confine him at the psychiatric facility, and he was released.

* At that point in 2010, he was as a matter of law free, "maximally discharged", with no lawful encumbrances remaining on his whereabouts or activities.

* During the time he was committed (but after his criminal sentence had expired), Wisconsin passed a law requiring lifetime GPS monitoring for people convicted of the kinds of crimes he was convicted for.

* The state contends that because he was involuntarily committed fairly as a matter of law, and because the hearing that released him from that commitment was aware of the GPS monitoring law when they determined he could be released, the GPS monitoring act was fairly applied to him.

* The state also contends that the GPS monitoring requirement isn't a "punishment" but rather a public safety mechanism.

* The court roundly and vividly rejected the idea that the GPS bracelet wasn't punitive, and found that because his commitment followed from a criminal conviction for which his sentence was entirely served, he couldn't be punished retroactively.

* The court also determined that because SCOTUS had already established that merely attaching a GPS monitor to a car temporarily constituted a 4A search, there was no possible way the state could prevail in any argument that suggested that lifetime GPS monitoring of a person was _not_ a 4A search.

As EFF says, this case is really more about retroactive punishment than
anything else. This plaintiff if a corner case. 10 years from now, we can
expect lifetime GPS monitoring to be the norm in states like Wisconsin.

Irrelevant but interesting note from the article:

Pedophilia is a diagnosis recognized by the court as warranting involuntary
commitment, but the state cannot premise arguments on the idea that pedophiles
will _compelled_ to molest children. If they were, pedophiles could evade
criminal convictions by pleading insanity.

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anonbanker
only property needs to be tracked.

I am nobody's property.

you can keep your GPS devices. I'll stick to my phablet.

