Although many out there (who didn’t read this) don’t really understand the SCOTUS decision in U.S. v. Jones, the holding is at least clear enough to have gotten a large number of warrantless GPS trackers off the streets. Well, apparently some didn’t make it off the street yet, but we’ll get to that.
Yesterday, the WSJ blog reported on statements by FBI’s general counsel Andrew Weissman regarding the ramifications of the Jones decision.
Mr. Weissmann, speaking at a University of San Francisco conference called “Big Brother in the 21st Century” on Friday, said that the court ruling prompted the FBI to turn off about 3,000 GPS tracking devices that were in use.
These devices were often stuck underneath cars to track the movements of the car owners. In U.S. v. Jones, the Supreme Court ruled that using a device to track a car owner without a search warrant violated the law.
And we stop there to reiterate that this commentator, like many others, is wrong about the ruling. The Court did not say that tracking a car owner requires a warrant. THE COURT ONLY SAID THAT PLACING THE DEVICE ON A CAR IS A SEARCH. It is true that this will (or should) require a warrant in most circumstances, but courts are not historically shy about finding exceptions to justify warrantless searches. As courts further define the boundaries of this type of search, police forces like the FBI will expand and alter their use to push up against those boundaries. “Mr. Weissmann said that the FBI is now working to develop new guidelines for the use of GPS devices.”
But figuring out how to get back to surveilling us all isn’t the FBI’s only problem:
After the ruling, the FBI had a problem collecting the devices that it had turned off, Mr. Weissmann said. In some cases, he said, the FBI sought court orders to obtain permission to turn the devices on briefly – only in order to locate and retrieve them.
Reminds me of the camera in the pigeon coop in The Wire (and don’t forget good ol’ Fuzzy Dunlop). Um, sorry we illegally placed our equipment there. Can we have it back please? Maybe they should just leave them there until they find out what the legal standard is going to be. Sure, for the ones requiring warrants, they can’t be legally turned back on, but maybe we find out that in certain instances you can get by with just reasonable suspicion or probable cause. In that case, they could just flip the little guys back on in situations where they think the legal standard was met prior to installation. Just a thought. Maybe I should have been a fed.
But back to the FBI’s legal scholar-ing. Apparently the FBI guys are at least cognizant of the Jones concurring opinion that “a person has a reasonable expectation of privacy in the totality of their movements, even if those movements are in public.” Mr. Weissmann commented that the FBI is also looking at the concurrence to anticipate how it may affect things “down the road.”
So even the concurrence is getting some play. Not bad. And despite the very limited holding by the majority, Nino wrote an opinion that is already protecting a lot of people from police invasions of privacy. So here’s to you, Justice Scalia, defender of liberty.
For today at least.