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Last week, a 20-year-old California college student discovered a GPS tracking unit on his vehicle, planted by the FBI as part of a terrorism investigation. The agents said they were acting upon an ''anonymous tip'' and ultimately decided that Yasir Afifi was ''boring'', but the ramifications of their actions, and legal vagaries surrounding them raises questions that may need to be addressed by the Supreme Court.

''It's extremely problematic,'' says Afifi's attorney, Zahra Billoo, a lawyer with the Council on American-Islamic Relations. ''They are invading people's privacy, not only without warrants, but without reasonable suspicion.''

Billoo believes Afifi was targeted because he fits the profile of a young Arab American male who travels frequently. CAIR is asserting that Afifi's rights were violated.

The case raises concerns about the erosion of privacy protections for all Americans. FBI Special Agent Joseph Schadler says ''court decisions have consistently upheld that there is no warrant necessary for GPS tracking of a vehicle.''

But that's not entirely true.

UC Hastings Law Professor Rory Little believes Afifi's case is headed for the Supreme Court because the law on this issue is unclear, with contradictory rulings from the Ninth Circuit Court of Appeals and the District of Columbia Court of Appeals.

In January, the Ninth Circuit Court ruled in U.S. v. Pineda-Moreno, making it legal for federal agents to plant GPS tracking devices on vehicles without a warrant. DEA agents used a device to connect Juan Pineda-Moreno to an illegal marijuana grow operation. Pineda-Moreno's attorney argued that entering his property to plant the tracking unit violated his privacy, but the court disagreed.

The case concerned a legal precedent known as the ''open fields doctrine'' which holds that there is no reasonable expectation of privacy on private property that is not fenced in. Because a driveway is accessible to mail carriers and neighbors, there is no assurance that federal agents will not plant surveillance equipment on a vehicle without a warrant. Where fences do exist on driveways, there is still no expectation of privacy on public parking lots. Beyond that, the court holds that so long as a vehicle is on a public road, tracking it is legally no different than following in an unmarked car, which does not require a warrant.

Chief Judge Alex Kozinski warns in his dissenting opinion, ''We are taking a giant leap into the unknown, and the consequences for ourselves and our children may be dire and irreversible. Some day, soon, we may wake up and find we're living in Oceania,'' referring to George Orwell's dystopian classic, 1984, where an authoritarian state monitors a subjugated citizenry 24 hours a day, criminalizing thought itself.

Last August, in U.S. v. Maynard, the D.C. Court ruled the exact opposite of the Ninth Circuit Court decision, that law enforcement does need a warrant when tracking a car by GPS. In this case the issue was not an expectation of privacy in the driveway where the device was planted, but rather the degree of privacy expected on public roads.

The prosecution argued that radio transmitters have been used to track vehicles without a warrant since the early 80s. In the past, the Supreme Court has held that police can follow a vehicle assisted by a radio transmitter because that movement is already observable with the naked eye.

The difference between tracking with a radio transmitter and a GPS unit, according to this ruling, is that the transmitter requires the attention of an officer following the vehicle in real time, but a GPS unit can record movements for months at a time. Thus, eliminating the need for an observing officer. It's the ability to agrogate the information that makes the difference. In other words, while there is no expectation of privacy on public roads, it is reasonable to expect a general anonymity.

George Washington University Law Professor Orin Kerr asks, ''When is the line crossed?'' The distinction in this decision is not the type of surveillance, but it's duration. According to Kerr, this means somewhere between one day and one month of tracking, a warrant becomes necessary. But determining when that line is crossed is functionally at the discretion of the officer. Kerr worries that, ''the tool (GPS) is just that much more dangerous because even though the information that is obtained is the same, there's just a greater risk of abuse.''

If the pubic is receiving simultaneous contradictory information from multiple authoritative sources, how are they to know what their actual privacy rights are? If the interpretation of law is wide open does it really limit intrusion at all, especially if the FBI so readily asks forgiveness rather then permission to intrude?

3 Comments

Who

October 31st

Pleasanton, CA Police Chief Michael Frazier has turned in his resignation papers on Oct. 27, 2010 Resigning Officially on November 13, 2010 Wow.... I didn't see that coming like a freight train in the distance. Stay tuned.....


All American't

October 20th

To better understand these G.P.S. devices you’ll have to look at some old cases. Heres one. B.D. Eubanks was arrested by the Pleasanton Police Dept. in 2007 and a GPS device was wired to his car. The P.P.D. then stole his car days later, held it under a ‘Police Impound’ for 2 ½ months, then junked & destroyed his car 3 days before his pre-trial court date. Why? Because the P.P.D. were wrong for taking the car without a warrant and accessing it. The P.P.D. then needed to cover-up the car theft, so they used a Tow Company in Richmond, CA to help in the destruction of physical evidence and the vehicle. And they did. Eubanks name was removed from his car at DMV thanks to cronyism, collusion and corruption. Both judge H. Walker and C. Moruza did nothing when confronted with the Judical Misconduct. Why? Because what law enforcement and the F.B.I. would call a simple cassette-tape walk-man isn’t what it truly is. It’s more like a state-of-the-art MP3 player capable of not just GPS tracking, but Bluetooth interfacing with a Bug inside of the car. And “that” is eavesdropping. Eubanks sued the Tow Co. responsible for destroying his car at the request of the P.P.D. A subpoena was issued to the P.P.D. a month and a half the trial date, but they decided not to show. That Lawsuit was won by Eubanks. Here’s a link to that suit in Richmond, CA. http://icms.cc-courts.org/tellme/tellme/tellmecasereport.asp?language=ENGLISH&courtcode=R&casenumber=RSC09-0671&casetype=RS If the G.P.S. device was Kosher and there was no Governmental misconduct, then ask yourself , ”Why was all the evidence, G.P.S. tracker intelligence and Police report suppressed by Judge C. Moruza?” Meanwhile, the Pleasanton City Attorney MICHAEL H. ROUSH State Bar #72456 has resigned as a result. Alameda County District Attorney THOMAS J. ORLOFF State Bar #45714 followed suit as well. Ladies & Gentleman it’s unfortunate that our Government and Law Enforcement Agencies bend, break, and molest our Constitutional Rights using the PATRIOT ACT, but it happens every single day. Equally disheartening are the Folks within our Government who choose not to say the last word of our Pledge of Allegiance. . . . ‘ALL.’ These Folk’s mumble something else like, ”and justice for me.” Or, “and justice for some.”


aLL-aMERICAN...JUST LIKE YOU...

October 17th

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http://icms.cc-courts.org/tellme/tellme/tellmecasereport.asp?language=ENGLISH&courtcode=R&casenumber=RSC09-0671&casetype=RS IF THE PLACEMENT OF THE GPS DEVICE WAS KOSHER AND THERE WAS NO MISCONDUCT ON BEHALF OF THE LAW ENFORCEMENT INVOLVED, THEN YOU HAVE TO ASK YOURSELF WHY WAS ALL THE EVIDENCE AND GPS TRACKER INTEL THROW OUT BY JUDGE C. MORUZA? WHY DID SHE SUPPRESS ALL THE EVIDENCE IN THE CASE? MEANWHILE, THE PLEASANTON CITY ATTORNEY MICHAEL H. ROUSH STATE BAR #72456 HAS RESIGNED AS A RESULT. DISTRICT ATTORNY THOMAS J. ORLOFF STATE BAR #45714 FOLLOWED SUIT AS WELL. LADIES & GENTLEMEN IT'S UNFORTUNATE THAT OUR GOVERNMENT AND LAW ENFORCEMENT AGENCIES BEND, BREAK, AND MOLEST OUR CONSTITIUTIONAL LAWS USING THE PATRIOT ACT, BUT IT HAPPENS EVERYDAY. EQUALLY DISHEARTENING ARE THE FOLKS WITHIN OUR GOVERNMENT WHO CAN'T SAY THE LAST WORD OF OUR PLEDGE OF ALLIEGENCE........ALL. THESE FOLKS MUMBLE SOMETHING ELSE LIKE, AND JUSTICE FOR 'ME'. OR, AND JUSTICE FOR 'SOME'.






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