SAN FRANCISCO – Yasir Afifi, a 20-year-old computer salesman and community college student, took his car in for an oil change earlier this month and his mechanic spotted an odd wire hanging from the undercarriage.
The wire was attached to a strange magnetic device that puzzled Afifi and the mechanic. They freed it from the car and posted images of it online, asking for help in identifying it.
Two days later, FBI agents arrived at Afifi's Santa Clara apartment and demanded the return of their property — a global positioning system tracking device now at the center of a raging legal debate over privacy rights.
One federal judge wrote that the widespread use of the device was straight out of George Orwell's novel, "1984".
"By holding that this kind of surveillance doesn't impair an individual's reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives," wrote Alex Kozinski, the chief judge of the 9th U.S. Circuit Court of Appeals, in a blistering dissent in which a three-judge panel from his court ruled that search warrants weren't necessary for GPS tracking.
But other federal and state courts have come to the opposite conclusion.
Law enforcement advocates for the devices say GPS can eliminate time-consuming stakeouts and old-fashioned "tails" with unmarked police cars. The technology had a starring role in the HBO cops-and-robbers series "The Wire" and police use it to track every type of suspect — from terrorist to thieves stealing copper from air conditioners.
That investigators don't need a warrant to use GPS tracking devices in California troubles privacy advocates, technophiles, criminal defense attorneys and others.
The federal appeals court based in Washington D.C. said in August that investigators must obtain a warrant for GPS in tossing out the conviction and life sentence of Antoine Jones, a nightclub owner convicted of operating a cocaine distribution ring. That court concluded that the accumulation of four-weeks worth of data collected from a GPS on Jones' Jeep amounted to a government "search" that required a search warrant.
Judge Douglas Ginsburg said watching Jones' Jeep for an entire month rather than trailing him on one trip made all the difference between surveilling a suspect on public property and a search needing court approval.
"First, unlike one's movements during a single journey, the whole of one's movements over the course of a month is not actually exposed to the public because the likelihood anyone will observe all those movements is effectively nil," Ginsburg wrote. The state high courts of New York, Washington and Oregon have ruled similarly.
The Obama administration last month asked the D.C. federal appeals court to change its ruling, calling the decision "vague and unworkable" and arguing that investigators will lose access to a tool they now use "with great frequency."
After the D.C. appeals court decision, the 9th Circuit refused to revisit its opposite ruling.
The panel had concluded that agents could have gathered the same information by following Juan Pineda-Moreno, who was convicted of marijuana distribution after a GPS device alerted agents he was leaving a suspected "grow site."
"The only information the agents obtained from the tracking devices was a log of the locations where Pineda-Moreno's car traveled, information the agents could have obtained by following the car," Judge Diarmuid O'Scannlain wrote for the three-judge panel.
Two other federal appeals court have ruled similarly.
In his dissent, Chief Judge Kozinski noted that GPS technology is far different from tailing a suspect on a public road, which requires the active participation of investigators.
"The devices create a permanent electronic record that can be compared, contrasted and coordinated to deduce all manner of private information about individuals," Kozinksi wrote.
Legal scholars predict the U.S. Supreme Court will ultimately resolve the issue since so many courts disagree.
George Washington University law professor Orin Kerr said the issue boils down to public vs. private. As long as the GPS devices are attached to vehicles on public roads, Kerr believes the U.S. Supreme Court will decide no warrant is needed. To decide otherwise, he said, would ignore a long line of previous 4th Amendment decisions allowing for warrantless searches as long as they're conducted on public property.
"The historic line is that public surveillance is not covered by the 4th Amendment," Kerr said.
All of which makes Afifi's lawyer pessimistic that he has much of a chance to file a successful lawsuit challenging the FBI's actions. Afifi is represented by Zahra Billoo of the Council on American-Islamic Relations, the country's largest Islamic civil rights group.
Afifi declined comment after spending last week fielding myriad media inquiries after wired.com posted the story of his routine oil change and it went viral on the Internet.
Still, Billoo hopes the discovered GPS tracking device will help publicize in dramatic fashion the issue of racial profiling the lawyer says Arab-Americans routinely encounter.
She said Afifi was targeted because of his extensive ties to the Middle East, which include supporting two brothers who live in Egypt and making frequent overseas trips. His father was a well-known Islamic-American community leader who died last year in Egypt.
"Yasir hasn't done anything to warrant that kind of surveillance," Billoo said. "This was a blatant example of profiling."
I thought in the United States of America, we had such a thing as the Fourth Amendment. Apparently the FBI disagrees.
The bigger question here that scares the heck out of me is - What happens when it's us? I don't think too many people on here support the Obama agenda. So what happens when we are viewed as threats and they stick things like this on our cars?
A couple of weeks ago I heard that the feds have portable back-scatter X-Ray imagers installed in vans. Now they can roll around the streets and see what's inside cars, behind walls, and under pedestrians' clothes.
Yup the portable scanner was developed for rescue workers to locate lost souls in a burning home or in rubble after a disaster such as a tornado and hurricane. The Feds love it. That aint new though they have had that for a few years now.
"You say the Devil made do it with a smile. Raisin' hell and howlin at the moon. Well I'm gonna put your @$$ back in line. I'm gonna scare the Devil out of you."
BlackBerry Smoke Song http://www.youtube.com/watch?v=R513dA4peMg
Nothing is "proof" against a truly talented fool.
Last real, documented, info on this technology I read, it would take a small semi-trailer to tote all the hard/soft ware, computers and power supply......Not that it isn't a nifty technology for scanning containers, air passengers, luggage, etc in the right circumstances/conditions. >MW
X-ray vans that can see through walls--and clothes--hit America's streets. Nervous yet?
AS&E's vans can be driven past stationary vehicles to scan their contents or parked to see the innards of passing cars and trucks.
Privacy-conscious travelers may cringe to think of the full-body scanners finding their way into dozens of airport checkpoints around the country. Most likely aren't aware that the same technology, capable of seeing through walls and clothes, has also been rolling out on U.S. streets
Used a backscatter van a few years ago. Van sized, works OK, but you really need a good operator that knows what he is looking at or mistakes will be made. Of all the layers of security I was dealing with, a puppy dog with a good nose barked the loudest.
On this surveillance stuff, the genie is out of the bottle. If the courts won't limit this gear through constitutional constraints, we have to elect folks who will limit it through budgetary restraints. Starve the monster.
Warte nur, balde ruhest du auch.
I am torn between being a strict constitutionalist and thinking that anyone named Yasir, Muhamid or Abdulah should have a GPS chip implanted in their butt before they are allowed into our country.
I am for having a "GPS chip implanted into their butt before they are allowed into our country" if it is done within probable cause and with a warrant explaining what and who they are surveilling. If they can bypass the Fourth Amendment rights of Americans named Yasir, they can just as easily undermine the Fourth Amendment rights of anybody else.
I do think terrorism needs to be dealt with. But it can be done within the limits of our Constitution.
Last edited by hogger129; 10-19-2010 at 08:13 PM..
It's a shame they go out of their way proving they can exploit the weaknesses of our society and destroy people and opportunity instead of adapting as generations did before, and embrace a new life that isnt dictated by mullah's and figure heads of whatever else denomination....
it's killing our country, and we have a huge segment who are cheering them on... if that's not the definition of TRAITOR then what is?
Something I once read, referring to the NAZI exterminations in the 1930s and 1940s:
When they came for the Jews, I did nothing. When they came for the Gypsies, I did nothing. When they came for the Catholics, I did nothing. When they came for me, there was nobody left who could do anything.
I am continually amazed that so many people think that if the government is able to ignore the civil liberties of one group of people, it doesn't matter because that group is "bad", and "since I'm not part of that group, so it won't hurt me".
Criminals shouldn't have any rights. Terrorists shouldn't have any rights. Well, maybe. The problem there is, who gets to decide who is in fact a criminal or a terrorist? In America, it's supposed to be a jury. Unfortunately, that is no longer the case.
A couple of decades back a Police Chief wrote a best selling book in which he advocated eliminating rights for criminals. The problem was that it seemed, in his opinion, that a criminal was not someone who had been tried and convicted of a crime. He apparently felt that it was anyone who the police thought was a criminal. His dream seems to be coming true. Since 2001, largely because the media has managed to instill such an unthinking fear of terrorism in the American public, an incredible number of laws that completely ignore our supposed constitutional protections have been enacted. And most Americans are fine with that, because these laws are supposedly directed against terrorists, and they themselves are not terrorists.
Unfortunately, that's not how it really works. A terror suspect can now be locked up indefinitely and held totally incommunicado. He can be refused the right to speak with a lawyer (or anyone else), and nobody, not even his wife or children, has to even be told that he has been arrested, let alone where he is or anything else. He himself does not have to be told why he is locked up, and does not have to be actually charged with anything at all in order to be kept however long they feel like keeping him. And I'm talking about months, even years, not just days or even weeks. Now this may sound fine to many people. After all, the guy's a terrorist, right? WRONG!! He doesn't have to be convicted or even, either officially or unofficially, accused of any crime. All it takes to remove every single constitutional right there is from ANY individual is a statement saying that he is under investigation for some connection to terrorist activity, signed not by a judge or even a prosecutor, but simply by, essentially, any federal officer. No need for any judge or prosecutor to even be involved. Just some federal officer. And no need for even an accusation of actual terrorist activity or involvement, just of being somehow "connected to" some unspecific and unexplained "terrorist activity". Like the guy who had this happen to him because he used a computer at a public library in Florida which had some time previously been used by the terrorists in 2001 while they were going to flight school. NOT because he used it for anything that was in any way related to terrorism, or even any other kind of crime. Just that he happened to use one of the same computers. Oh, yeah. And because he had an Arabic name.
When all it takes is for any federal officer to be suspicious of you, for even for the stupidest of reasons, and to then sign a statement that you're being investigated for connection to terrorism, for you to be secretly locked up and held however long they wish, YOU HAVE NO RIGHTS. You may feel safe because you know you're not any kind of a criminal, let alone a terrorist, but under such laws you do not have to be one. You simply have to be suspected of maybe being somehow connected. And your English, French, Irish, or whatever, last name is no protection at all. Nothing in these laws says that they can only be used against people with Arabic sounding names.
I believe it was Benjamin Franklin who wrote that he who is willing to surrender his liberty in return for security will, in the end, have neither. Unfortunately, most Americans do not know they are surrendering their liberty because they think these laws will only affect terrorists. The reality is that they affect everyone because there is no requirement that anyone prove that a person really is a terrorist, not even a requirement to show that there is probable cause to suspect some individual.
The constitution was specifically written to protect EVERYONE. It was intentionally designed to protect against the "tyranny of the majority". It is SUPPOSED TO insure that no person or group is treated unfairly just because the winds of majority opinion have shifted to include them as some sort of "undesirable". Our government IS NOT structured for majority rule, it was never supposed to be. It was designed for majority rule restrained by specific constitutional protections, so that if enough legislators who, as an example, believed that private individuals should not be allowed to have guns (sound familiar, folks?), got elected, private possession of guns could not be made completely illegal.
You cannot pick and choose which parts of the constitution you like. You cannot rely on the 4th amendment to let you keep your guns while you allow the protections against unreasonable search and seizure, and imprisonment, to be ignored. You cannot say that certain parts of the constitution protect you while you allow someone else, who has not been proved to be any kind of a criminal, to be stripped of those protections. The constitution either stands as a whole, and protects everyone, or it protects nobody. Otherwise, only the people who are members of whatever is at the time the "respectable" part of society, and who agree, and who the government acknowledges agree, with whatever the majority opinion is at the moment, will have reasonably free lives. And if, somehow, the majority opinion and/or the accepted definition of "respectable" shifts, as it often does, not even they will be left alone.
tmaca, this reminds me of some recent discussion about a "terror loophole"..... supposedly, people who are on the "terror watch" list are still able to pass the background checks and purchase firearms..... as you can imagine, the anti-gunners are trying to introduce legislation which would block this so-called "loophole". Sadly, a lot of gun-owners agree with them.
The problem is, of course, that any one of us could be placed on the "terror watch" list at any time. No formal charges, no trial, no conviction. Just the stroke of some bureaucrat's pencil.
If a foreigner was here on a legal visa, and his name was on the "terror watch" list, I guess we might be justified to prevent him from buying a gun. However, U.S. citizens should not have their rights denied in such a arbitrary manner.
@Warith, Right you are... We should, nay, must fight against the tyranny of fascist oppression where-ever we encounter it. Stand up for your rights and do not allow 'them' to walk all over you. Write, Speak, Do.
I do this in my own little part of the world and reach out when ever and however I am able. We can no-longer be bystanders if we truly want to live in a FREE land basking in the warm glow of LIBERTY!
I have called my local politicians and Sheriff on violations and will continue to do so... I also OPEN CARRY in my state. Much to the chagrin of local law enforcement.
I am not going to back down. We can no longer afford to back down.
Stand your ground and do not allow them to trample on you...
"The man who trades his freedom for security shall have neither"
tmaca, I couldn't have said it better! People need to open up their eyes and realize that all of our freedoms are eroding and most people just sit idly by and watch it happen "as long as it doesn't affect them". Once it does affect them, it is too late!
I just happened to find this site today and am glad that I did. I was starting to think that I was the only one with these kinds of thoughts, but it's satisfying to find out that there are indeed others that feel the same way that I do. We really do need to take our country back, not from democrats or republicans, but from all government!