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>One could argue that attaching this tracking pixel to an email is similar to attaching a GPS tracker to a vehicle. In United States v Jones in 2012, the supreme court ruled that placing a GPS device on violated the 4th amendment.

One can't make this arguments based on the Jones ruling because Jones doesn't apply in this situation. The entire reason why the court ruled that physically attaching a GPS tracker to a car is against the fourth amendment is because attaching the device involves physical trespass on a suspect's vehicle which they considered part of his "personal effects." A tracking pixel doesn't have the physical intrusion bit that the court found unconstitutional. In Jones the court only addressed the physical intrusion, not the GPS data itself.

https://en.wikipedia.org/wiki/United_States_v._Jones

>Also left unanswered was the broader question surrounding the privacy implications of a warrantless use of GPS data absent a physical intrusion – as might occur, for example, with the electronic collection of GPS data from wireless service providers or factory-installed vehicle tracking and navigation services.[27] The Court left this to be decided in some future case, saying, "It may be that achieving the same result through electronic means, without an accompanying trespass, is an unconstitutional invasion of privacy, but the present case does not require us to answer that question."[36]

How does it fare W.R.T. Carpenter? https://en.wikipedia.org/wiki/Carpenter_v._United_States

Carpenter is a fascinating case and you're astute to bring it up. If the tracking image were capable of actually tracking the entirety of someone's location (the way CSLI is), then Carpenter would probably apply.

Assuming it is just a normal tracking image, though, it doesn't provide "detailed, encyclopedic, and effortlessly compiled" information about someone's activities - just whether they opened that particular email while displaying remote images, and - if so - their HTTP request. I think it's unlikely this fits the facts under Carpenter.

Also, Carpenter was about a warrantless search. We really have no idea if the prosecutors did this on their own initiative to try to address the violation of the protective order, or if they did it at NCIS's behest after a warrant. It's entirely possible that this is at NCIS's initiative. Still a lot of facts to uncover here.

thanks

> A tracking pixel doesn't have the physical intrusion bit

It does trigger a request on the user's computer, which is a personal effect, after effectively smuggling code onto it. Definitely a grey area.

Just playing devils advocate... Isn't the (poorly configured) mail client making the request?

The real problem is that it is acceptable for lawyers to use email for sensitive communications. Many lawyers just don't understand-- and don't want to. The rules that allow them to practice forbid being nefarious.

(What I'd do is a different topic.)

My take on it is that the real problem is email software not making it clear-as-day to the user that the message they are about to open is in fact a webpage, and that they will be actively connecting to the World Wide Web to load it, and potentially allowing third parties know that they have opened the message.

Regular people won't make the mail <-> WWW connection in their head without being told, nor should they be expected to.

Indeed. Nobody who cares about privacy allows email clients to load remote images. Or any remote content, for that matter.

Triggering an existing code path with a piece of data in its “normal” use case doesn’t really qualify as “smuggling code” tbh

> The entire reason why the court ruled that physically attaching a GPS tracker to a car is against the fourth amendment is because attaching the device involves physical trespass on a suspect's vehicle which they considered part of his "personal effects."

I understand how you're just trying to reason from the other side. Just trying to show how the reverse argument might happen.

As far as I'm aware, one of the reasons "hacking" has been defined to be a crime, is that unauthorised access to someone's machine has also been defined as a kind of trespass. Allowing them to rule that deploying code from one location to another is also trespass against the physical location.

I've already argued against your first quote in the post. The privacy acts only apply when the government is getting the data from third parties such as from an email provider or ISP. In this case the image is directly communicating back to their servers and no third parties are involved. Communications between two parties are not subject to the privacy laws when you are one of those two parties.

The target is irrelevant in the case of legality. The only additional protections a journalist has is on not revealing their sources. This doesn't impact or interact with other emails so no sources could be compromised via a tracking pixel. Being "shady" isn't illegal and I wouldn't even say a tracking pixel is shady. The closest approximation of what this tracking pixel is doing is as a read receipt for a piece of mail.

If you want to quote "United States v Jones in 2012" against others you should probably be aware of what the presiding judges actually ruled. It was determined that the action was illegal only because physically attaching the device was considered trespass of private property not because the tracking of the vehicle's location required a search warrant.

If you wanted to make a similar argument you would have to instead refer to the Computer Fraud and Abuse Act to cover something similar to digital trespass. A tracking pixel does not violate that law under any circumstance that I'm aware of.

Any action by the government that can be seen to be chilling toward a free press can be interpreted as a violation of the first amendment. It's not as black and white as you make it out to be, and remember new precedents are being set all the time. They're also in the ninth circuit which is historically hugely favorable to these kinds of cases. You get a strong enough case, a lot of money and a creative lawyer, you might be able to make some caselaw here. There's at least a baseline argument for it.

That said, target is not irrelevant for illegality. There's also an issue of ethics in targeting other lawyers; if I was the defense lawyer this is the issue I'd be pushing like crazy with the judge, ethics panels, etc. Right or wrong, they can do something with that, esp. if they can get some discovery that proves there was actually an attempt to target -- that would be huge. (And they're not allowed to delete any documents to that effect since they are the government).

> This doesn't impact or interact with other emails so no sources could be compromised via a tracking pixel

Journo forwards email to source for comment. Source triggers tracking pixel. Source is compromised.

It ups it entirely another level in that it also was received by defense counsel. That really isn't going to look good for them.From the article: "In the judicial part of this equation, tracking devices give the user an unfair advantage in court proceedings. If you know who your opposing counsel is contacting, you can divine how they are building their case and find ways to counter it."

They can also do discovery to find out the intent behind the pixel -- if they find anything about tracking to find the source of the journalist or learn about the defense, they risk having the entire case thrown out.

This could get really, really interesting. If I was the defense lawyer I would push this as far as I possibly could.

Conversely, it’s also like the police offering you a can of soda as they question you and then later swabbing the empty van for DNA evidence. Totally legal if a bit sneaky.

> They lay it out pretty clearly in the article. What you are describing might be true for a private company, but that same behavior from a military branch of our government is very different.

There's something bizarre about that argument.

Why should it be OK for private companies?

Belated edit: Given that Constitution-based arguments are being used against the Navy, it's interesting to note that the Constitution outlawed private corporations. Unless they had public-interest charters. And that didn't change until the late 1800s.

> If you want to go absolutely crazy mad with paranoia maybe they could collude with another federal agency to tap that network connection... but that is INCREDIBLY unlikely for this.

Sorry for the undeveloped response, but....hahahaha