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FBI Turns Off Thousands of GPS Devices After Supreme Court Ruling (wsj.com)
146 points by ahmadss 1249 days ago | 46 comments



I'm interested in how

> a person has a reasonable expectation of privacy in the totality of their movements, even if those movements are in public.

translates to actions on the public internet. This has potentially huge ramifications if it were to apply to the web, where the "totality of one's movements" can be much easier to track and perhaps even more revealing than where my car goes.

Can the FBI, by this standard, potentially need a search warrant to:

1. attempt to create a complete profile of my semi-public internet content (surreptitiously friend me on Facebook, follow my Twitter feed, and monitor all other sites where I am active for recent posts)

2. look at the browsing history of a public terminal I regularly use at a library

3. capture packets I'm sending over unencrypted WiFi in my home

None of these things are very much private nor does any involve any trespass by an investigator--perhaps 3 carries the greatest expectation of privacy by the average technically uninclined citizen. A lawyer could argue, however, that in capturing one or more of them, the FBI approaches capturing nearly all of what somebody does on the internet.

I think the Supreme Court has done a very interesting (and perhaps unprecedented?) thing here in creating an expectation of privacy in a public environment by invoking the work totality. With cameras getting smaller, and networks wider, and databases larger, it only seemed inevitable that within a few decades, all of our public movements within urban centres could and likely would be recorded. Similarly, people are already to starting to consider the internet to be "forever," since content never seems to be really "deletable," and Google/Facebook increasingly lower the effort needed to profile somebody's web content. Tell me that in a few decades, our movements on the internet will not be as important as our movements in the physical world, if that isn't already the case.

I hope this decision is the seed of a legal philosophy that could impede the continued erosion of privacy-in-public by everyone's smaller chips and bigger hard drives. In my mind, the freedom for people to interact in public without fear of lifelong ramifications is vital to democracy and societal progress although less and less people seem to agree with me. So, maybe this is my desperate optimism talking.

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I think the point SC is trying to make is that while you're in public, FBI is free to follow you around all day long, thus tracking you in a way that you made publicly available.

However, bugging your car isn't something that you made explicitly available and therefore is violating your reasonable expectations of privacy.

That said, this indeed makes it very interesting in online play. It's obvious that FBI shouldn't just hack into your computer and watch your every move. But, if they just happened to observe your unencrypted data bits and make sense out of them, that might still be legal. After all, that's just like watching where your car goes to every day.

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Actually, the opinion says that this case doesn't have anything to do with "reasonable expectations of privacy" like the government contended originally. The court says that this was actually trespass.

It's an interesting distinction, they made the decision not on Katz's "expectations of privacy" test, but instead on common-law trespass which the Fourth Amendment was based on. So this decision clarifies that the "expectations of privacy" test added to the Fourth Amendment's common-law origin, it didn't replace it.

(page 4 of the opinion, page 6 of the pdf): http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

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>prompted the FBI to turn off about 3,000 GPS tracking devices that were in use

When I read the figure of 3000, I ricocheted between being shocked at the large number of people being tracked, then realized that it's actually tiny compared to the US population of 313M, and then back to be being dismayed that it's not so small after doing some back-of-the-envelope calculations.

Here's my thinking:

The US has 254M registered vehicles (Wikipedia), but cars are shared within families and the average family size is 2.6 (US census). If we further assume that a subject is tracked for about a month, the tracking device gets used on ~10 vehicles per year. Hence, 254000000/3000/2.6/10 = 3256.

So your chances of regularly riding in a "bugged" vehicle during the year are 1 in 3256. I have more than 3256 accumulated contacts in my email -- probably you do too.

Conclusion: It's very likely that you know someone who's vehicle is being tracked by the FBI this year.

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It's very likely that you know someone who's vehicle is being tracked by the FBI this year.

You're assuming that the rate is evenly distributed. I think it's very likely that it isn't; if you're involved in espionage or organized crime, you probably know several people who were being tracked by the FBI.

Based on your "more than 3256" people you know by name and the (bogus) equidistribution hypothesis, you should also know 1 or 2 victims of violent crime and about 10 victims of property crime each year, and at some point in your life you should know a homicide victim.

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NY police is snooping on people "just" for being Muslim[1] (I put Muslim in quotes just in case you think that in and of itself supicious)

So, you don't need to associate with the hypothetical drug barrons & foreign agents: you just need to know a Muslim.

[1] http://www.huffingtonpost.com/2012/02/24/police-spying-new-y...

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True. And since one of your friends being Muslim is correlated with another of your friends being Muslim, this makes the distribution of number-of-friends-being-GPS-tracked even further away from Poisson.

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> NY police is snooping on people "just" for being Muslim

And what would be your best guess as to why they did that?

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"New York City cops, they're not too smart" -- The Strokes

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Apparently smart enough to see the correlation between a person's religion and terrorism in New York City. Pretending it's not there wouldn't be too smart.

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> You're assuming that the rate is evenly distributed. I think it's very likely that it isn't; if you're involved in espionage or organized crime, you probably know several people who were being tracked by the FBI.

Yes, I assumed an even distribution because it's the best I can do based on available information. If the FBI would publish an annual list of the names of people they tracked and the reasons why, then we could create more precise odds based on individual circumstance.

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I think cperciva was trying to point out that if you have no reasonable basis to make a distribution assumption you also have no basis to make a conclusion.

In my own life I've been trying to abide more by Wittgenstein's Tractatus conclusion:

Wovon man nicht sprechen kann, darüber muss man schweigen. ("Whereof one cannot speak, thereof one must remain silent.")

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Aber, Hoffnung ist nur mangel auf Information ;-)

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Ich hörte es "Optimismus is nur mangel an Information," denke ich.

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To save you the trip to Google Translate:

tripzilch: Hope is just a lack of information

Locke1689: I heard it: "Optimism is just a lack of information," I think

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They can track you via your phone already. The dedicated devices are presumably more reliable for them and were used so they didn't have to get a warrant for phone tracking.

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Good point. Considering that the phone companies have a long history of secretly sharing foreign call data with the NSA, and a recent history of secretly sharing domestic call data as well, we can expect more of the same.

Rather than fighting this Supreme Court Ruling, maybe law enforcement will instead push for real-time access to GPS data from the carriers.

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> For instance, he said, agency is now “wrestling” with the legality of whether agents can lift up the lid of a trash can without committing trespass.

Um, I thought it was pretty well-established that you cannot do this? Is the FBI just stupid?

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I assume they are talking about garbage on the curb, where it is pretty well established that they can do this.

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Very often, the parkway or land near curbside is public property and not personal property. You put your garbage cans there, you've "discarded" their contents.

I believe the same applies to alleyways.

(IANAL and I don't know the specific legal arguments.)

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Yeah I've heard this but the trash can wasn't discarded, I could see how a trash bag alone maybe since all of it is going to the trash but an actual trash can with a closed lid? What is the rule around mailbox? Would opening the mailbox door be considered trans-passing? Wouldn't that apply the same to a trash can?

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The mailbox is/becomes USPS (U.S. Postal Service) domain (I don't know about "property"). Which is why you'll never find handbills placed in them -- it's against the law, and the postal service will fine and/or prosecute companies that violate this.

Again, I don't know all the arguments, but you can, for example, leave your bicycle on public property without losing your property rights to it. (For that matter, you can park your car on a public street.)

I believe the convention is that, when you've placed your trash for pickup, you've also discarded your property rights. Where the line is, though, for example with regard to "placement"? Any lawyers want to chime in?

P.S. Or, I/we could wade through the other comments in this now much larger thread.

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The definition of curtilage applies in this scenario.

http://en.wikipedia.org/wiki/Curtilage

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If the trash is at the curb and not on your property, they can. So.. if they can do that, how is that differnet than your car parked in the street? Both are in a public area.

(note I'm only addressing the reason for asking the question. Evidence gathered from trash is useful too, and for evidence not on your private property, currently I believe no warrant is required (why should it be? It's no longer your private stuff, it's garbage headed for a public landfill.)

Vehicles are a bit different - but if the vehicle were parked in the street, and not in a private driveway, no trespass is required to plant a tracking device.

If this is now considered some kind of trespass, then the feds DO need ot re-evaluate the potential fallout from garbage-related evidence.

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Well on the other hand, one could also argue that when you put the trash on curb you give away any rights to it - which means that the trash becomes a public property that Feds have access to.

Vehicles on the other hand, even when they are on public property still belong to the owner and hence although no trespassing is required in planting the device (inside or outside the vehicle), the Feds would still be meddling with private property.

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If you read the actual opinion (which I recommend, it's very interesting), placing the tracking device on the vehicle's undercarriage is actually trespass:

"It is important to be clear about what occurred in this case: The Government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a “search” within the meaning of the Fourth Amendment when it was adopted." (page 4 of the opinion, 6 of the pdf)

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

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You know, that brings up a good point. Maybe you could make a claim that when putting garbage on the curbside, you're simply "parking" it there until the pickup in the morning.

In this case, you could argue the garbage becomes public properly only after it is collected, and only by the collection services, which you would expect on regular basis. Thus you'd prevent FBI from just pick up your trash, saying "well, you were gonna give it up anyway".

Thoughts?

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> Well on the other hand, one could also argue that when you put the trash on curb you give away any rights to it - which means that the trash becomes a public property that Feds have access to.

You could make that argument, but I'd disagree. Law enforcement can (should) only do what we the people allow.

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> If the trash is at the curb and not on your property, they can

cannot agree and would argue. same logic would apply to you while walking on public street -- just because you are in public, doesnt mean people can do whatever they want to do to you. same with your car being in the public.

if someone would want to go against government in a case where gov searched your trash can, one would have to (at least try)

- prove that trash can is your property because you bought it and have receipt or because you pay your property tax, which I may be right or wrong, would say what your obligation/rights towards the trash can. It would be interesting what outcome one would have with approaching your property manager and telling them you gonna use your own trash cans. In this example, it would be a clear to the judge that gov went through your own property, regardless if its your car, your boat or your trashcan. its yours, you bought it, you won it.

- prove to the judge/gov that your current or your property current agreement with utilization company clearly state who owns the trash/trashcan and at which point it is still your property or stops being yours. I would argue, and you could find hundreds of cases where people been convicted for life or put on chair because officials found bead body on the thrash yard that they said was your property []of course there is more into it such as dns checkup etc, if there is a poison tree fruit law applied, same way they wouldnt be able to use your dna found in the trashcan if they didnt have a right to go through it and even if found and i know it sounds crazy, it shouldnt be used as an evidence]. Therefore I would say you owe the trash even if its rotting somewhere on the trash yard. I dont know how far utilization rules/laws go, but one could try calling their utilization company and telling them "i want my trash back". wonder what outcome you will get if you threaten them to sue if they dont giver it back to you (the purpose of doing that would be what utilization company attorney would say).

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That's just so much effort to plant those things. Isn't that what Facebook and specially crafted SMS messages are for?

Now they can save money and go up another order of magnitude in the amount they track!

Would you be particularly concerned with wasting your time with low-tech lojacking when so many other avenues of surveillance are around the corner? Isn't it better to direct your efforts to be ahead of the curve?

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Sounds reasonable and looks like 8-0 ruling

http://www.supremecourt.gov/opinions/11pdf/10-1259.pdf

I wonder what the ruling would be for a case of a search of a trash can that is on the public street: seems it should be allowed without warrant.

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Unless we look at the privacy implications. Just because I Dont' want the paper anymore doesn't mean I'm putting it in the public domain..... or does it. If people find my junk useful, they can take it. but if there was some paperwork in there that I probably should have burnt or cross-cut-shred, should privacy laws not provide some kind of protection here? What if I realize the mistake before the truck comes but the feds have already taken my documents? It could be murky, and should be defined.

And for the record, I want law enforcement to be able to effectively do their jobs, and for technology to help them, but something that used to be hard and expensive that is now cheap and easy ( gps trackers instead of following people manually) should never be an excuse to abandon the fundamental principles put in place to prevent the abuse of power.

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"... something that used to be hard and expensive that is now cheap and easy ... "

That seems to sum up all the problems I'm seeing now. It's become so easy/cheap to track people, that the cost of doing so doesn't have to figure as prominently in the decision.

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If you dropped paperwork into the trash without shredding it, I would be much more worried about an identity thief taking it than a federal agent.

I'm as freaked out as the next person about the U.S. turning into a police state, but feds rummaging through trash bins out on the curb is fairly low on my list of worries.

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Why? They're not searching it because it's randomly in the street, they're searching it because you are presumably interesting. If you're that interesting then there should be no problem getting a warrant.

The privacy issue here is whether you have the right to avoid specific scrutiny by the government. I think the government should either have to make their case, or GTFO. That's the myth we learned in Civics class anyway.

We don't let the government do things merely because they can.

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Slightly off-topic, but the topic of the story made me think about GPS navigation devices. Not a big deal, but slightly annoying.

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Well if you have OnStar or a Tesla, remote tracking is possible.

For Tesla, see http://news.ycombinator.com/item?id=3619088

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If you carry a cell phone while on, remote tracking is possible too. It's even easier since usually the wireless signal is better than the multiple satellite signals that need to reach the gps under (or wherever they put it) the car and might even be more precise in city environments due to the closer spacing of cell towers.

I find it odd that people are so concerned about this while they carry a tracking device with their person all or most of the time...

EDIT: not only that, can be instructed as a real time listening device, if you are that paranoid :)

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I believe the context we were talking about was for GPS devices.

I'm not disputing the use case of tracking via cell phone but that's a whole other ball of wax.

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This is one of those rare instances lately when news about the actions of the federal government are positive and encouraging.

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If they hadn't made this judgment, would there be anything stopping you or I from legally attaching GPS devices to government official's cars and recording their movements?

They should overturn the ruling and make it fair game for anyone to track anyone else. Then we can make google maps mashups for tracking each other and government officials.

--edit-- </sarcasm>

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While it's a fun turn-the-tables idea, because government is so much bigger, with more power and resources, this would still be incredibly unequal. You might be able to track a dozen government officials; the FBI could track every member of a political minority group (eg. the persecution of MLK).

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police/fbi was caught lying many times before. I dont think stop using GPSes is an option for them. Any idea from a layer standpoint what would happen if they still track a car with GPS and this is proven? can someone be liable or is it just going to be a slap on the wrist, some one-page document saying "kindly please stop because you were told to by supreme court" ? what kind of law works against FBI?

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The evidence gathered from the GPS and any evidence gathered as a result of that evidence would be thrown out of court. It becomes fruit of the poisoned tree[1]. I think most police agencies would be very careful to not risk having all evidence gathered while the accused car is nearby thrown out.

http://en.wikipedia.org/wiki/Fruit_of_the_poisonous_tree

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It is more likely that the police would press their luck against a suspect who does not know his rights and cannot afford lawyer. A high socioeconomic class suspect is less interesting to the FBI.

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most police work nowadays is mouse and cat play. I can foresee them still using those devices but just not using them as a proof in court.

example. you put gps and track some narcotics dealer to a place where they exchange the stuff. you caught everyone. you go in front of the judge, he asks you: how did you know where to find them, do you tracked them by gps [just adding here i know this wont play this way], - no, judge, we just had anonymous tip coming through our hot line.

make sense?

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