Hacker News Reader

Comment by tptacek | Hacker News Reader

If you'd like to take a shot at it, feel free to try to convince me that I should be concerned about warrantless GPS tracking of subject cars.

* I'm a good-faith commenter on HN and not inclined to troll you or piss you off for no reason.

* I'm a liberal Democrat.

* I donate money to the ACLU.

* I do not think it is unreasonable for law enforcement agencies to designate, during the course of an actual investigation of a specific target, individual cars for GPS surveillance:

- so long as removing the devices if they're detected isn't a crime

- and research and development of technologies that shield cars from GPS monitoring isn't banned

My reasoning: the police already have the clear and reasonable right to surveil cars from a distance either by ground patrol cars or aerial surveillance. That low-tech surveillance, which has never required a warrant, is actually more intrusive than a GPS device, in that it records your actual actions at each location.

I'm not generally opposed to things that allow law enforcement to do a better job with fewer resources.

I don't want to get into the Patriot Act or anything; we're talking about GPS transponders, which is a specific concept we can actually get our heads around. So let's try!

View on HN

> If you'd like to take a shot at it, feel free to try to convince me that I should be concerned about warrantless GPS tracking of subject cars.

Without a warrant, you open the door to them being used for harassment. For example, by people who have videotaped police brutality and the like can be followed around in ways that would be impractical otherwise. With a warrant, they at least have to justify their use and it would create a paper trail that would document any abuse of power.

I think it's an interesting technology (though the devices are way too conspicuous if anyone goes looking...) and I see no reason to ban them. But I think there's a long enough history of bad apples in the police department abusing things such that we should be very careful about giving out grants of unchecked power. Today it's a GPS. Tomorrow, they might plant cameras or other devices, saying they didn't need a warrant for the GPS, so they shouldn't need one for any other device.

Sure, they've always been able to just tail you with no warrant, but that required more of an investment of their time, which limits how badly (and covertly) it could be abused. With technology removing these limits, the potential for abuses widens, and so it's reasonable to ask them to justify its use.

If a warrant is too burdensome for whatever reason, I could at least be satisfied if someone was required to articulate the reason for its use and submit that paperwork to the courts, without requiring their approval, prior to attaching the device, so that they would have someone watching over their shoulder for abuse without impeding all the legitimate uses of this technology. But I see no reason to grant them unchecked power.

Please don't misinterpret this as implying that all cops can't be trusted or something like that, though. I've known good cops. I lived in a small town and pretty much the whole force looked after us after something terrible happened. But I also know what happens when things go wrong; I've seen the recordings of corrupt cops and the brutality videos. I just think there's a happy medium where we check for abuse without tying the hands of the honest cops who are trying to protect us.

*... can be followed around in ways that would be impractical otherwise. With a warrant, they at least have to justify their use and it would create a paper trail that would document any abuse of power."

This is a key point. The problem isn't so much that certain things are done under legitimate circumstances, but that they sometimes happen under dubious or plainly immoral circumstances.

Introducing some friction to the process means there's essentially no significant barrier to doing it but it's still not entirely cost-free; there's some overhead involved making it less likely to happen nilly-willy and increasing the changes that improper action will be caught by some oversight.

I agree, but why are we adding friction to this thing?

By all means lets make it harder for the FBI to get access to Internet traffic, or to telephone logs.

But generally, if the FBI believes it has a car it wants to follow, I'd like them to be able to do that as effectively, cheaply, and safely as possible.

Friction can be a good thing, but I don't think we should add it everywhere just for the sake of it. And remember, one consequence of friction is that it wears things down. The court that says "yes" to hundreds or thousands of GPS tagging requests is more likely to say "yes" to the next search warrant request too; we'd have constructed a system where the "yes" corresponds with the base rate.

By all means lets make it harder for the FBI to get access to Internet traffic, or to telephone logs.

But generally, if the FBI believes it has a car it wants to follow, I'd like them to be able to do that as effectively, cheaply, and safely as possible.

I don't see that great a difference between my Internet traffic or phone logs and my daily whereabouts (i.e. my travel traffic and my physical location logs).

Good point about the debasing of saying 'yes' to things; it might end up like the permission system in Windows 7 where you get asked for permission for damn near everything to the point one starts clicking "OK" without thinking.

But having zero friction for trailing anyone, anytime, is also a problem.

It's no "zero friction". Zero friction would be realtime access to feeds from OnStar, or license plate imaging at every street corner.

True, there's friction there. The problem I have is more with the lack of accountability, even to see who authorized it after the fact. All it takes is one stalker type with access to these and they can follow their ex around all day, every day.

I think someone else hit the nail on the head elsewhere when they said that they wouldn't be comfortable with their neighbors doing this. I think that's relevant, because it exposes that normal people do see a privacy interest in having someone follow you around, whatever the law may currently say about the existence or non-existence thereof. Maybe it's not a reasonable expectation, but that doesn't seem right to me, even if our privacy is steadily decreasing.

"I'm not generally opposed to things that allow law enforcement to do a better job with fewer resources."

While I freely concede I'm making a "balance" argument and as such there can be reasonable disagreement on where the correct balance is, there is a bound on how far you want to take that. It is not a bad thing that law enforcement takes some effort, as it serves as a sort of natural counter on excessively zealous enforcement, one far more effective than any law or ACLU lawsuit could ever be. The goal isn't to make the police job as easy as possible, the goal is to serve justice.

This makes it easy to keep an eye on a much larger number of people with little increase in manpower, and the problem there is that by increasing the amount of data, while at the same time reducing the quality of the priors on the data that the person (or perhaps rather the vehicle) in question has committed some sort of crime, you will start encountering the classic signal processing problem where you will inevitably start to get more false positives. Requiring a warrant to drop these on somebody's car, and therefore requiring some sort of prior probable cause, isn't just good civil liberties (because those false positives hurt real people), it's good statistics.

Doing "the same thing as before, only more easily" is still an important qualitative change in law enforcement and security in general, and I think you need an argument more powerful than that to justify the change in question.

Should they be allowed to track everyone? No. I'm comfortable with the limitation that someone has to actually walk up to the subject vehicle and attach a device to it.

If you want to talk about things like dragnetting every car on the road through things like OnStar, this is going to be a very boring conversation, because I can't imagine anyone on HN --- myself included --- is comfortable with that idea.

(Even though it's inevitably going to happen, not because law enforcement is grasping, but because technological progress is going to make access to that information the default).

Falling costs and shrinking size mean that over time, your standards of 'walking up and attaching' and 'detection and removal is allowed' will become less meaningful over time. They could become so cheap, ubiquitous, and nearly undetectable that your 'same activity just more resource efficient' standard will allow a quantitative difference to become a qualitative difference.

And I'll be right there with you when that happens. But right now, what's happening seems to this particular liberal who is generally concerned with his civil liberties to be reasonable.

I think the problem is then: how do you decide, and build a consensus, about how much use is too much use? Especially given that the use is covert, you might not even know when it passes the threshold you might find abhorrent.

That's why my preferred kind of civil liberty protection relies on bright-line rules. Saying, "it's OK until it starts to feel excessive" is an invitation to law enforcement to go up to, and then beyond, that abusive line – in secret – waiting for some sort of delayed backlash as the only check.

"Falling costs and shrinking size mean that over time, your standards of 'walking up and attaching' and 'detection and removal is allowed' will become less meaningful over time."

Not to mention co-opting devices like those employed by OnStar. No way to remove that one.

That's where we're headed. Soon these devices will be so cheap that they CAN track everyone. And if they don't require warrants, why wouldn't they?

You can be pulled over anywhere at any time without a court order or even the permission of an officer's supervisor. All it takes is a reasonable suspicion that you've violated any of hundreds of fiddly traffic laws. People generally don't have a problem with this; you learned about this when you were 15 and in the classroom part of driver's ed.

There are places where you can be pulled over for no reason, by default, because everyone is being pulled over. These are usually "sobriety checkpoints", but sometimes they come right out and call them "compliance checkpoints". In some states, they're lawful; in others, their lawfulness is more questionable.

I have a problem with checkpoints. Lots of people do. So there's a bright line: you can pull some people over (you hopefully have a reason, but we accept the notion that nobody has time to make sure and then if you're an officer and abuse that privilege there is a process for disciplining you). You should not be pulled everyone over.

There's a slope, I agree, but I dispute that it is as slippery as you say.

There are places where you can be pulled over for no reason, by default, because everyone is being pulled over.

This is the case in Canada, and I don't know anyone who has a problem with it. The police can't pull everyone over and demand that everyone provides a breath sample for alcohol analysis -- but people accept that if you've got 10 police officers stopping cars, it's a heck of a lot safer to stop everybody than to have them jumping into and out of traffic picking out individual cars.

I fully understand and respect why people want to protect their rights.

But often times I think people are too strong in fighting to protect their rights. It's as though reducing/eliminating the _minor_ inconvenience of a false positive is more important than stopping/preventing a false negative.

Well, a lot of people consider that it is indeed more important. You've surely heard the notion that it's better for ten guilty persons to go free than for one innocent person to be convicted; this is not merely defense-lawyer rhetoric, but was enunciated as a basic principle of criminal justice by Sir William Blackstone (widely considered the architect of the common law system which underpins the anglophone legal tradition).

But often times I think people are too strong in fighting to protect their rights.

I'm sorry, but I can't even parse that into anything that makes sense. How could you ever fight too hard to protect your rights?!?? I mean, what could possibly be more important than protecting our innate, individual rights?

Maybe it's just me, but in my world-view, the whole "give me liberty or give me death" thing is not just a tagline. The only reason I can see for not fighting tooth-and-nail to defend your rights at any particular moment in time, is if you're faced with overwhelming force to the point that trying to defend yourself would amount to suicide, and you're willing to exercise discretion and "live to fight another day" when the odds may be more favorable. But that's a strategic decision, not abdication of your rights...

I mean, what could possibly be more important than protecting our innate, individual rights?

Lots of things. If you are on a lifeboat and are terribly paranoid and aggressive, then the other passengers may be quite justified in tossing you into the water. The existence and general primacy of individual rights does not negate the existence of collective rights; see an overview of these issues going back to Thomas Jefferson at http://en.wikipedia.org/wiki/The_Constitution_is_not_a_suici...

I'm not certain what you mean by a false positive (what happens?) in this case, so it's hard to assess how harmful false positives would be.

wrt excessively zealous enforcement, it may be the case that more efficient police work improves the situation. Right now, the police have an incentive to arrest somebody even if they aren't sure who to arrest. If technology means they can arrest more real bad guys more easily, there won't be so much pressure to bend the rules.

I wonder what the data retention rules and/or policies regarding these devices under either warranted or non-warranted use (on the off chance that they're different).

Is there any guarantee in place that one of them might be attached to an innocent persons vehicle, only to have some budget-desperate bureaucrat decide to datamine his departments last 2 years worth of archived GPS tracking data in search of fineable offenses?

"Your car was detected exceeding the speed limit 63 times on 101 southbound on weekday mornings, and 59 times on 101 northbound on weekday afternoons between 01 Jan 2011 and 31 Mar 2011. We are offering you a one-time opportunity to settle all 122 speeding offences for $45 each, a 75% reduction on the minimum fine amount, if you pay $5,490.00 online by creditcard and waive your rights to appeal by 5pm on Fri 11th Nov. Failure to pay in full by Fri 11th may result in issue of 122 speeding fines @ $180 each resulting in a total fine of $21,960.00. Regards, your local cash-strapped local government area police department."

See data retention is (to my mind) a great point to bring up here, as opposed to arguments in principle about whether law enforcement should be allowed to do anything because war! on! terror!

I would tend to think that investigations are "active" or "not active", have case numbers, have a process for being closed and open probably documented in the police General Orders or whatever the FBI equivalent is, and I think the police should not be able to retain information from vehicle telemetry past the closing of a case unless they are actual format subjects of the investigation, and then only consistent with the existing policies on retaining information.

I DO NOT think it is reasonable to use GPS telemetry to passively fine people for speeding or running red lights.

In addition to what tptacek said, I would say that since the data was collected without a warrant, you could defend against it. My understanding is that the tracking data is used to get a warrant to get real evidence which then becomes the basis of the case. The tracking data is not itself the entire basis for the case.

Cynical-me thinks "And that theory has worked so well against the RIAA's blackmail tactics..."

The thing is, the powers that different parties have are all based on a delicate system of checks and balances. Allowing the police to more efficiently pursue people is not necessarily desirable, and in fact many laws and Constitutional amendments (such as the whole idea of a warrant) are explicitly intended to clamp down on police efficiency. It would be much more efficient if the justice system didn't have to worry about guilt or individual rights at all, but that is obviously undesirable.

Previously, their ability to monitor people was limited by physical resources. This technology largely eliminates that constraint and allows them to conduct surveillance in cases where they never would have felt it was worth their time before. For roughly the same amount of work that tailing a suspect traditionally would have required, they can now track everybody he's come in contact with.

So the question is, did we really mean for police to have unlimited surveillance powers, or was it simply never considered before because natural limits always existed? I would argue the latter.

This is similar to how the Second Amendment cannot reasonably be read as allowing individuals to own thermonuclear warheads. That is obviously outside its intended scope, even though a literal reading of "right to bear arms" would appear to allow it.

Should the police have "unlimited surveillance powers"? Of course not.

Should the police be allowed to employ technologies that allow them to monitor every car on the road?

My answer to that is no, but we're technologists, and, be honest: 15 years from now that information is going to be available to the police by default, no matter what we do. But no: I have a problem with the notion of law enforcement dragnetting every single vehicle on the road. It's a power that has been abused with things like roadside sobriety checkpoints, which inevitably turn into revenue-raising boondoggles that inconvenience law-abiding motorists.

Should the police be allowed to employ technologies that allow them to designate specific vehicles in the course of actual investigations and monitor them using telemetry instead of manual patrols?

I say yes. For the same reason I said before: the telemetry is actually less intrusive than the power they already have, and the benefits are common sense: overtaxed investigative agencies can cover more ground more easily, fewer cars are on the road pointlessly following people, &c.

I agree they should be able to designate specific vehicles and monitor them using telemetry, but I would call this process of designating "getting a warrant." Otherwise, I don't see what prevents them from, say, designating everybody the suspect knows. To me, it seems almost inevitable that this will go the way of sobriety checkpoints if there isn't any force holding them back.

Assume a GPS is already installed on every car and in every cell phone - this will be the case in about, oh say, right now.

"allow them to designate specific vehicles in the course of actual investigations"

What process do you think they should use to designate a vehicle and access the records? I would think passing the request by a judge and swearing to him that they think there is a reason to track this car is a good way to do it.

Again: I do not think the police should have warrantless access to telemetry devices owned by the motorist.

I do not care what process is used to determine what cars an actual police officer will walk up to and attach a device to, just like I do not care what process is used to determine which cars an actual police officer will tail in an unmarked car. I care that some process exists, but I don't think it needs to be court ordered.

I think you should consider carefully whether mechanically involving the courts in decisions about collecting information in plain sight of police officers is in your best interests. Search warrants are already often a formality granted in the overwhelming majority of requests. A good way to help condition the court system to say "yes" to every request is to flood them with requests that in virtually every single instance will be be reasonable.

My point is that all cars and cell phones already have GPS trackers installed. Since there is no need to place a device on a car or person to track them, the police just have to access the already existing records. If it is OK to place a device on a car without a warrant, wouldn't be OK to access tracking records without a warrant?

I agree with tptacek on this one: Even if they have the same effect, they're fundamentally different things. The difference is that by placing a tracker, you really are just tailing them with an electronic device of your own. But co-opting their phone or forcing a company to divulge records without a court order is essentially a violation of their property rights and protection from unreasonable searches.

I can appreciate your position that if cops have to flood the courts, eyes will glaze over and careful consideration will go out the window.

But what use is an unclogged judicial review process to protect our fourth amendment rights if the police already have a green light to conduct unlimited surveillance?

More specifically: what good is judicial oversight when selective reporting of telemetry data can and will inevitably show you crossing paths with persons and locations noted for criminal activity?

Do you really expect the court is going to be familiar with sets of coordinates and realize that they are mere stops at intersections along your commute to work? Or popular shops and restaurants? Will they have any clue that the one time you were at the intersection marked in the warrant filing, that it was because there was an accident along your normal commute and you detoured a couple blocks?

24x7 telemetry data is effectively automatic-probable-cause. Cherry-picking that data is the digital equivalent to two cops playing the "Hey, Bob, do you smell marijuana?" game.

You will have crossed paths with criminals. You will have stopped, shopped, worked, ate or drank in proximity to criminals. You will have associated with people who could be argued to be intermediaries for criminals.

Give me a month's worth of 24x7 telemetry data and I'll give you an arguable criminal narrative.

The police do not need probable cause to surveil a vehicle driving on public streets.

If they did, I would understand the argument that warrantless telemetry was scary. They'd be using technology to bypass a check/balance that already exists. But they don't. The police can follow you for no reason. They can follow you because they don't like the look of your haircut.

I do not think the police should have 24x7 access to telemetry from all vehicles. I think the process needs to start with, "Subject K of this investigation is known to drive this late motel Honda Civic, and we are now commencing GPS surveillance".

I do worry about the consequences of LEOs cherry-picking from a constant stream of everyone's telemetry data, so that for instance you might get harassed if you lived in nice neighborhood X and drove into bad neighborhood Y for a few minutes, and, whoops, now there's probable cause that you just went and bought drugs. That kind of stuff? Bad! A good reason why we shouldn't be OK with them getting all the OnStar data or whatnot.

But that's simply not what we're talking about here. As long as an LEO has to walk up to a car deliberately and attach a device (which again let's be honest probably costs way too much for them to throw away), I am fine with it.

But they are limited by resources. Say your 2nd cousin is a drug dealer. They probably aren't going to tail you in an unmarked car.

However, if they can slap a GPS tracker on your car they might just do that.

This technology allows them to cast a MUCH wider net allowing more potentially innocent people to be caught up in it.

> "The police do not need probable cause to surveil a vehicle driving on public streets."

What I meant was: having telemetry data makes it trivial for the police to concoct a story that would sail through any judicial review for a warrant. They're already notorious for pulling people over for such sins as Driving-While-Black. Telemetry data would make it very easy for them extend that harassment with search warrants. Not to mention the knowledge that the police can get such a warrant on a whim (and toss your house upside down, impounding your electronics) would be absolutely devastating to the liberty of anyone they feel like harassing.

> "As long as an LEO has to walk up to a car deliberately and attach a device (which again let's be honest probably costs way too much for them to throw away), I am fine with it."

Cost is perhaps the least convincing argument against strict limits and judicial oversight on this behavior. The surveillance state has a clear and unwavering history of constant expansion in legislative authority, budget and implemented scope. And that's more than ably abetted by the constant downward pressure on technological product costs.

Your argument strikes me like saying that the TSA's scope was reasonable on day 1, and we needn't worry about strict limits on its inevitable expansion in invasive-ness and locations 'secured', simply because it would cost too much to expand.

Relying on the price of security state enforcement to protect our liberties is nothing short of shockingly naive.

Conversion of a person's own property into a device used against their interests, and a possible source of testimony against them, is sufficiently like entering a locked premises, opening a closed purse, or active wiretapping that it should be subject to the same procedural protections.

This seems especially true if the attachment requires concealment via modification to the property, camouflage, tools, or splicing into the existing electrical system. But anything which follows the person onto their own private property and perhaps even into their home garage – as an attached bug necessarily does – has crossed what I see as a bright line between 'surveillance in public' and 'surveillance in private'.

How about: they are tampering with your property (your car). I think that is inherently intrusive. If, say, they were automatically tracking your vehicle with software that recognized it in traffic cams in public, that would not be intrusive (though some may still find it creepy).

What if this technology was cheap enough to slap one on everybody's car? If you don't need a warrant, why not? Can the feds install a tracker on every car in the USA? It's a lot cheaper than following everyone.

There is a mechanism for targeting specific individuals in the course of an actual investigation. It is getting a warrant.

I think it's more intrusive to actually be tailed: they can see who's in the car with you, they can watch what you do with that person when the car stops, they can see what you're eating, they know when you get out of the car, they know if you're talking to someone outside the car, and any number of other things. And they can get all that stuff today without a warrant; they will never need a warrant to tail someone.

They are tampering with your car though. Your feelings about the matter don't change that fact.

Where exactly do you draw the line on LEO getting physical with you or your things? Would you mind if they started putting things on the roof of your house? How about in your back yard?

I am guessing that you draw the line wherever it suits you personally, like most people. There are some people who love their cars though. What about them?

Is it OK for them to open the trunk to place the device? What about a door, a gascap, a tailgate? When do we draw the line?

If it's not tampering with your car to place a tracking device on it. Is it fine for me to go around looking under bumpers for one to take?

I'd love to get my hands on one, I've got enough EE experience to have some fun.

No, the police cannot open your trunk without a warrant. They can't even search your trunk, under most circumstances, when they arrest you.

The point is, the GPS transponder lowers the bar for supporting surveillance to the level that widespread abuse is possible.

This is particularly true of smaller police or quasi-police organizations whose professional standards aren't quite up to snuff. For example, the NYS Department of Labor placed a GPS tracking unit on the personal vehicle of an employee suspected of misconduct. They are now facing a big lawsuit.

In the good old days, the police could tail a suspect 24x7, but they would need the clearance to commit staff and overtime to the effort. If a detective goes to his Captain looking to follow around some random kid for weeks, he needs justification.

Today, you need to buy a cheap device and spend a few minutes planting and retrieving it. That minimal expense allows you to track a subject with complete impunity for weeks.

The inevitable result of all of this is going to be widespread abuse. A free society cannot remain so if citizens cannot conduct their affairs without looking over their shoulder (or under their car) at every moment. We need judicial oversight to answer the age-old question: "Who watches the watchmen?"

Should they be able to plant a gps tracker on your clothing without a warrant? After all, they could get the same information by just following you. This is just easier.

Why would it be any different than your car? It's not actually on your person, per se, it's on your clothing, which is different. Sure, the resolution of the determined movement is higher, but they could have an agent tail you to the same effect if you left your car.

The line we draw in the sand is somewhat arbitrary, but it has to be there. I'm generally for putting the line further up the slippery slope.

No, attaching anything to my clothing is extraordinarily intrusive, and the police do not in fact have the ability to monitor my every movement, unlike with my vehicle, where virtually all lawful movement is already subject to monitoring.

I don't think this is an arbitrary or subtle difference; I think it's night and day. I specifically think that warrantless monitoring of vehicles is reasonable.

Why do you get to say attaching anything to clothing is extraordinarily intrusive? What if I believe attaching anything to my vehicle is extraordinarily intrusive?

Easy: because virtually all operation of a motor vehicle occurs in an environment where you can have no expectation of privacy (for instance, I don't need to obtain a release to publish to Instagram a photo of a friend standing by a road with passing cars on it).

The same is not true of clothing.

What about a bicycle that can be carried indoors?

Nobody is proposing that the FBI GPS tag bikes, dude.

Motorcycles, dirt bikes, ATVs, Farm equipment?

On which side of your line do roller-skates fall? :)

Watching the vehicle is fine.

Altering or attaching something to it is a violation of personal property rights.

How do you feel about private citizens attaching GPS devices to vehicles without permission? After all, private citizens can also just watch cars...

Are license plates and city stickers a violation of personal property rights?

You need those things to drive on the city's property. If you want to drive your vehicle around on the freeway in Nebraska, you don't need Chicago stickers. If you want to disassemble your vehicle and eat it as part of a circus show, you don't need license plates.

So no.

If you're not driving your vehicle (for instance, if its a museum piece) the police have no business putting a transponder on it.

On the other hand, if you drive your Illinois car around on the freeway in Nebraska with expired Illinois plates, you will be pulled over, and the reason I know that is guess.

Help me understand why a transponder violated the sanctity of your car, but the valid state license plate, issued by the state and required on every vehicle, so as to allow the police to identify your car from a distance despite any individual interest in privacy doesn't. You can't even see the transponders.

> Help me understand why a transponder violated the sanctity of your car, but the valid state license plate, issued by the state and required on every vehicle, so as to allow the police to identify your car from a distance despite any individual interest in privacy doesn't. You can't even see the transponders.

A sticker or plate is placed on your car with your permission and knowledge. And when you accept it, you know that you are being treated just like all the other drivers.

A transponder is placed on your car (property) without your permission and without your knowledge. You are singled out for special treatment (tracking) by the police.

In the US, except for certain exceptions, searches require a warrant issued by a judge and probable cause. A search is an examination of another's property to look for evidences of a crime.

The biggest exception to the warrant requirement is the "plain view" exception. Police do not need a warrant if evidence of a crime can be seen in "plain view" without trespassing or employing special means to search.

So if you've failed to register your car, police can see this from plain view. They are not required to avert their eyes to not see the missing or expired tags. They don't need special equipment to see the tags. So they don't need a warrant to "search" for failure to register.

On the other hand, placing a tracking device and monitoring it is not within the plain view exception. Police must do considerably more than fail to avert their eyes in order to use the tracking device. They must have targeted a particular car for a search. They must place a transponder on the suspect's property without the suspect's permission (this is a trespass by the way). They must use special equipment to track the transponder. It is not visible or detectable with the unaided senses.

The difference between tracking a suspect with the naked eye versus using a transponder is like the difference between questioning a suspect and observing his reactions and body language versus giving the suspect a lie detection test. Police are not required to get a warrant to pay attention to how a suspect reacts to questions. But as soon as they start monitoring him with special equipment, then they have to get a warrant (or get his permission.)

Plain view is an exception to the warrant requirement, not the other way around. The rule is that police cannot search without a warrant. Plain view is an exception because it makes little sense to require police to ignore obvious signs of crime just because they don't have a warrant. After all, part of their job is investigation. But they have to do their investigation respectful of citizen's rights unless they get special, limited permission from a neutral judge.

(Edited to add the last paragraph.)

Not really apropos to the discussion, but, no, the biggest exception to warrant requirements isn't "plain view"; it's search incident to arrest. If you're placed under arrest for any reason, you can be searched, your person can be searched, any belongings you're holding can be searched, and your immediate vicinity (ie, the passenger compartment of your car) can be searched.

But we're not talking about search. We're talking about using technology to capture information in plain view that is explicitly made available to law enforcement.

The differences between GPS transponders and lie detector tests are numerous, including how invasive they are (having devices hooked up to your actual body), the fact that they require detaining you, and the fact that the police have absolutely no business attempting to ascertain your private thoughts, but are explicitly entitled to track your car.

(Lie detector tests are also a psychological ploy; they don't actually do anything.)

> But we're not talking about search.

You're right and this is the key to the whole problem. The Supreme Court has ruled that the Fourth Amendment does not protect a person against a search unless the search violates a person's "reasonable expectation of privacy."

So the police can search through your garbage, phone records, or bank statements because supposedly you don't have a reasonable expectation of privacy in those things since you've abandoned/given away your garbage to the trash co, let the phone co know who you want to talk to, and allowed the bank to keep track of your money.

So, the reasoning goes, a search of those things is outside of the Fourth Amendment: it's not even a (4th Amendment) search. Even though every non-lawyer normal person knows that it is. A search is just an attempt to look for something. And people normally do expect privacy in their their garbage, phone records, and bank accounts.

So now government can use dragnet software to continually track everyone's phone calls, bank transactions, internet usage, maybe email (people allow Google to read their mail so that Google can serve up relevant ads), maybe unencrypted wifi communications. No doubt in the future government robots will comb through everyone's garbage at the dump looking for evidence of crime. Next to this, planting tracking transponders on a car doesn't seem like such a big deal.

> If you're placed under arrest for any reason, you can be searched, your person can be searched, any belongings you're holding can be searched, and your immediate vicinity (ie, the passenger compartment of your car) can be searched.

I don't think the search incident to arrest is quite that broad. The police can search you and your immediate area for weapons and evidence that may be lost or destroyed, but, for example, I don't think they could search inside a locked briefcase, sealed letter, laptop, or cell phone (see http://www.policechiefmagazine.org/magazine/index.cfm?fuseac...). They also can't search your car for evidence of a crime for which they don't have probable cause if they already have you in handcuffs in their patrol car. (http://en.wikipedia.org/wiki/Arizona_v._Gant)

> (Lie detector tests are also a psychological ploy; they don't actually do anything.)

Successful passage of a lie detector test has been enough to get prosecutors to drop rape charges in a he-said-she-said case. (I was interning at the public defender's office at the time.)

Thanks for the reply. This discussion helped me to clarify my own thinking.

I'm fine if the government mandates that they install their GPS tracker on my car in order for me to be legally allowed to drive it. The reason is because it's my decision to make; if I don't like the rules, I could just not drive. (And I don't like the rules for having a driver's license in Illinois, like "implied consent", so guess what, I don't drive or have a driver's license.)

I don't like being singled out for special treatment without some judicial oversight. That's the problem with the GPS trackers; the sneakiness of it. If it were done out in the open, then I wouldn't mind.

I do not think it is unreasonable for law enforcement agencies to designate, during the course of an actual investigation of a specific target, individual cars for GPS surveillance...

Okay, so why not require a warrant for clear-cut cases like you suggest here? There's a legal mechanism, a historical precedent, a best-practice way of handling this sort of privacy intrusion. What is the compelling reason for throwing all that away?

I'm not generally opposed to things that allow law enforcement to do a better job with fewer resources.

Do you honestly imagine that a police department that adopts warrant-less GPS trackers will lay off some of the force it no longer needs for stakeouts and surveillance?

I don't.

This is a more efficient way of doing surveillance, but it isn't something that will be used to "do a better job with fewer resources." It will be used - it is being used - to cast a wider net, to launch larger fishing expeditions, just like every single piece of surveillance technology and surveillance-related legislation in living memory.

Thomas --

I mostly agree, but I think it makes more sense to flip the question: what do we lose by requiring a warrant to attach the device? If it's a valid criminal investigation, it seems like this would be easy to obtain, and having this small hurdle seems like it would help prevent abuse for political or personal agenda.

For me, the difference between attaching a temporary removable device and traditional visual surveillance is that individuals are allowed to monitor the coming and goings of vehicles in public, but are not allowed to trespass to do so. While I might be OK with an agency deciding that a vehicle should be monitored after following a written procedure, I'm not OK with individual officers making this decision without central approval. Or do you think it should be legal for individuals to do attach their own devices?

If there's legitimate suspicion of criminal activity, a police force should have no trouble obtaining a warrant. We have warrants so that the police do not operate without over-site and legitimacy.

If requiring warrants lets some criminals slip away, that's too bad. You can only approach 100% police success in a police state.

For me it's clearly a violation of my rights the second an agent of the state lays a finger on my property without oversight and due process.

That's logic that says your carry-ons can't be searched before boarding a plane --- not "you can be radioactively strip searched" but that no search is reasonable without compelling suspicion.

My point is, there are always competing interests at play, and the question is where we draw the line, and you probably can't draw the line at "a judge has to sign a piece of paper before an LEO can lay a hand on any of your personal property".

If there is no compelling suspicion, why then would a search be needed? Are you saying that we should get rid of the second amendment or change it?

IMO, we certainly should draw the line at "a judge has to sign a piece of paper...". Why would you want to give even more power to law enforcement? Do you generally not feel safe enough or do you just not care because it doesn't really affect you in a significant way?

Before you answer that....Are you one of those people who believes that the war on drugs is a good thing? (i.e. It's not basic intellectual fraud...) Or, are you one of those who think that no government would ever attack themselves or their own people; especially not the US Government? Or, that there are terrorists around every corner waiting to get you?

These are clear indicators to me that you've been brainwashed and if you've answered yes to any of those questions, you can feel free to not respond to any of my questions. Also please accept my apology if I've offended you. If not, I'd love to hear your responses.

The Second Amendment protects your right to keep and bear arms. You should get the numbers right before you throw words like "brainwashing" around in a conversation.

You're thinking of the Fourth Amendment, which says you're to be free from unreasonable search and seizure. And your problem in this argument is the word "reasonable", which the Supreme Court interprets as "conducted in such a way as to balance the state's legitimate interests with the individuals", meaning, "you are not free from all searches just because you're not a suspect".

Right, because the fact that I mistakenly referred to the wrong amendment invalidates my entire point.

And NO, my problem is not with the word reasonable. Your problem is that you want to continue empowering the state to erode your freedom and invade your life.

It has nothing to do with wording. It's all about actions and results.

(EDIT: Anyway, you'd probably get rid of the 2nd amendment too, wouldn't you?)

"I'm not generally opposed to things that allow law enforcement to do a better job with fewer resources"

To that I reply "A policeman's job is only easy in a police state" from Orson Well's "A Touch of Evil"

This sounds clever but doesn't really say anything. Yes, policing is hard. Perhaps we should attach 20lb weights to the arms and legs of police officers to make it harder. After all, police state.

I feel extraordinarily safe. I don't believe I need a single extra unit of safety, so I'm not willing to make police officers jobs any easier. Why should I be, the only potential consequences are negative.

I'm not terribly worried by GPS surveillance as described in the article. One objection does occur to me, though:

Watching suspects the hard way, with patrol cars and binoculars, is really expensive for the police department. They're forced by their own internal economies to gather data only on people they're deeply interested in. That, I'd argue, is why it's ok to follow people without a warrant. GPS transponders are much cheaper, so the police have less motivation to focus on only the most important suspects.

You're right. GPS trackers make it easier for LEOs to track people.

I'm saying, good. As long as they can't track everyone (or a significant fraction of everyone), and as long as we're talking about information that was already subject to surveillance (so, for instance, explicitly not talking about where your actual body is walking around inside buildings &c)... this seems like a good thing. LEOs are generally starved for resources. This seems like a common sense win to me.

You know, I think you should look at the government arguments for by-default strip searching in prison, even if your arrival at the prison is the result of having an unpaid ticket (Florence v. [Burlington] http://www.scotusblog.com/case-files/cases/florence-v-board-...). Although I see where you're coming from, law enforcement generally seeks to broaden the scope of any and all new powers, just as it seeks to narrow the scope of things like Miranda. Look at the incredibly low thresholds that are suggested for probable cause in drug arrest or asset forfeiture cases.

I think by-default strip searching is a terrible consequence of our piss-poor infrastructure for detaining people. Obviously I think it's a terrible policy (my understanding is also that that policy is starting to meet resistance in the courts) and would love to see it outlawed, but

(a) it's a symptom of a larger problem, and

(b) the larger problem isn't "law enforcement is in the long term just a system for allowing a couple thousand people unlimited access to anal cavity searches on arbitrary citizens".

Sure, but why aren't they tracking everyone on foot? It's not because it's illegal, and it's not for lack of desire either - it's simply too expensive. So given the current law, you can express LEO behavior as a function of tracker cost:

$10000: Use GPS trackers never, send patrolmen instead. We agree that this is suboptimal. $500?: Tag more people of interest than you could do on foot, involving some-but-not-many unrelated persons. $100?: Tag more vehicles, with a concomitant rise in data collection not related to any current investigation. $1: Tag every vehicle related even tangentially to an investigation, just on principle. This I would not approve of - how about you?

From that I conclude that there's some lower price bound at which the freedom/security tradeoff turns against us. I don't think we're there yet - I don't disapprove of anything reported in the article. But it'll happen eventually, and we should figure out how those laws should work before there's a de facto standard in law enforcement, because that standard will be "use them every time". Police work is terribly hard as it is; any further handicaps that we feel we need to impose must have the force of law behind them.

Following someone also isn't a special power granted only to police. Private citizens do it all the time.

It's probably not legal though for a private citizen to plant tracking devices on people however.

Because warrants (read: judicial oversight) at least notionally serve as a hedge against the use of government power against the people. If that is not sufficient enough reason then we do not have enough philosophical common ground to ever come to an agreement.

Others have explained why this is not equivalent to low-tech tailing, so I won't repeat them.

Instead, what precisely do you find so onerous about requiring a warrant for GPS surveillance? And would you support private citizens using these devices to the same extent?

Anyway, I don't think anyone's reasonably arguing for banning this technology. Requiring a warrant is still going to allow law enforcement to to do a better job with fewer resources; I truly don't see why it would be such a big hassle.

would you support private citizens using these devices to the same extent?

That's actually a pretty cool test to determine if a warrant would be required. I'm NOT OK with private citizens wiretapping phones, but I am OK with law enforcement wiretapping phones if and only if they have a court-issued warrant in order to do so.

ground patrol cars or aerial surveillance require a person to operate them. GPS tracking allows for tracking many targets at once and then sifting through the data to find "bad guys".

the added costs of having a person track a target means more care is taken to avoid false positives. the person doing the tracking can also dis-regard irrelevant data that an automated system might erroneously use.

imagine some program that automatically sifted through a source of ubiquitous GPS data which actually did catch 100% of all terrorist attempts in New York in 2010 (the Times Square bombing attempt). what if that system meant 100 false positives were added to the no-fly-list because they drove on street X on date Y followed by street Z within 2 days (or some other such algorithm) when (if) someone asks about these no-fly-list additions they are simply told that the suspects exhibited behavior that was consistent with the Times Square bomber... if you are not a terrorist, you have nothing to hide!

GPS tracking allows for tracking many targets at once and then sifting through the data to find "bad guys".

Excellent point. Professional statisticians make these mistakes all the time. It is widely considered the reason that so much published scientific research is false. If professional statisticians make these errors, then how can we expect the average policeman not to?

The number of people the FBI can surveil with these devices is, while larger than the number of people they can tail in cars, still tiny. That's why I'm OK with it.

The number of people they could surveil with a court order for access to OnStar data is so great that I don't even think they should be able to get court orders for bulk access to OnStar data.

Eh, that's true, but at the same time, tiny is relative. For perspective: The low-end cost of commercial GPS tracking devices is about $50 (as determined by searching Amazon). Assuming the FBI can get a bulk deal on a tracker around that price point, it could track every single Muslim in America for less than its annual construction budget.

I would add that the target shouldn't be liable for disabling, losing, or accidentally breaking said device if it is detected. I think basically they have to view it as giving it to me if they stick it on my property. I want the right to take it apart and figure out how it works.

I'll address a couple of points you missed (edit: but which you have addressed elsewhere in the thread - just wanted to gather it up in place rather than post 10 times):-

a. If putting a GPS tracker on my car* involves venturing onto my driveway during the night, then you're intruding on the curtilage of my dwelling. The fact that the mail carrier or meter reader is allowed to do so does not mean that I grant the police a free invite onto the easily accessible parts of my property. This is the basic issue that the Supreme Court will take up today.

* not that I actually have a car - a cunning anti-surveillance measure, if I say so myself

b. Even if I park my car on the street, shouldn't the police have to deal with economic scarcity like everyone else, and prioritize whether or not I am worthy of investigation? If technology as a matter of convenience is acceptable grounds for carrying out surveillance, why not require all cars to be fitted with GPS trackers that record their position and can be read out wirelessly by any passing cop who thinks he recognizes your car from a recent tip? If we don't want to force people to buy GPS devices, then why not make such GPS data automatically searchable? Google Latitude records all my movements, should the police have access to that without a warrant for reasons of convenience?

c. In any of these cases, should we mandate that the information be public? After all, if a crime is sufficiently interesting, the media will sue for access to all evidence or to broadcast the court proceedings on first amendment grounds (spurious ones if you ask me; I've soured on TV trials). Since the evidence will become public anyway, what interest does the individual have in keeping it private once the state has decided to inspect it? No jurisprudence says that you have any property interest in your privacy, and it's not hard to construct an argument for any given search being reasonable. I've seen the presence of raindrops on a moving vehicle at 3am offered and accepted as reasonable grounds for a search (which correct intuition helped to catch a murderer fleeing the scene of a crime, as it turned out).

d. If almost any search is reasonable and can become a matter of public record by default, is there not an argument that possession of a GPS device in a car or phone that is deliberately turned off, disabled, or left behind by the user constitutes circumstantial evidence of intent in criminal or even tort cases? As you know, the threshold for establishing intent or knowledge in criminal cases can be quite low if it's not the sole fact in question, and it's lower again in civil litigation. If I can demonstrate a pattern of GPS use on your part that is temporarily interrupted during a period overlapping the commission of a crime that was reasonably accessible from your last recorded location, isn't there a basis for suspecting that you wished to conceal your movements?

e. Even if a warrant is required for me to get hold of your phone records or gain access to the contents of your phone, doesn't the fact that I could snoop your phone use over your shoulder whenever you pull it out in public compromise any expectation of privacy that you have when operating your phone in public? In other words, if I approach you while using your phone and suddenly order you to hand it over for inspection on the grounds that I saw something which appeared suspicious to me on the screen, are you entitled to lock your phone by hitting the power button? After all, your phone was open to the world (in plain view), and that's why I noticed something suspicious about it. Your locking of the device would then seem to constitute interference with a lawful search...

Sure, I'm playing slippery-slope here, but these are all cognizable arguments and I have heard as much and more from various conservatives and police officers over the years. I'm rather conservative myself where jurisprudence is concerned, but GPS tracking strikes me as an active rather than a passive sort of surveillance, not least because it necessarily involves interference with property or person to plant the tracking device.

I think you missed the most important point. GPS data is associated with my car, but there is not guarantee that I am the one opperating the car. Manual police surveillance would (hopefully) notice this. Furthermore, it makes planting false evidence rediculously easy. Some nasty cop (or civillian) could simply transfer the GPS to another vehicle, violate some crimes with it, then transfer it back to the original vehicle.

Without controls preventing these sorts of abuses---and I suspect such controls would be impossible to implement in practice---GPS data would do more harm than good.

True, but you could make the same challenges to human surveillance in many cases, or that of traffic cameras at red lights (with some success, it must be said). I'm trying to focus on the second-order effects that could ensue if I accepted Tom's legal argument at face value.

(a) I don't think it's reasonable for LEOs to invade my driveway, garage, &c to install telemetry devices, just like I would have a problem with getting tickets for having expired tags if my car was pulled all the way into my driveway (which, at least here, the police can't do).

(b) What we're dealing with here is the balance of conflicting interests. What I see is a scale, from "every car is tracked" through "many cars are tracked" to "very few cars are tracked" (though, honestly, I think we all know that proportionally very few cars are going to be tracked with manually-attached FBI telemetry devices). What I'm saying, and the answer to your "why?" question here, is that the state's interests at this point on the scale are more compelling than the individual interests.†

(c) Why is the information we're talking about from telemetry devices any different from dash-cam videos from tail cars, or from pen registers monitoring phone lines, or...? I don't see this as germane. The answer? No, I don't think information collected by law enforcement agencies during investigations should be made public.

(d) Here you've lost me completely. Almost any search is reasonable? Strong disagree!, as they say on Wikipedia. I think fewer searches should be reasonable, in any event, but this isn't a "search", any more than the smoldering one-hitter you leave on the empty passenger seat in your car is "searched" when a cop spots it after ticketing you for weaving in between lanes. Is there an argument that disabling GPS telemetry is evidence of criminal intent? Of course not, no more than closing your shades is evidence of criminal intent when the police are surveilling your house, or shredding documents is intent when the police are collecting your trash.

(e) The difference between a phone conversation and the presence of your vehicle on a public street is the difference between an almost total "reasonable expectation of privacy" and an almost nonexistent "reasonable expectation of privacy". I don't know whether you're arguing this point or not; it may be that I have to agree with the premise that "every search is reasonable" to agree with this point.

† Other people on HN will contend that we should make no concessions against individual interests at all, because, America. But we both know that virtually every individual interest we have has been hardened by decades and decades of tests of the state's legitimate interests vs. individual interests, so that for instance the passenger compartment of my car can be searched incident to an arrest but no the trunk &c &c

Is it really reasonable that the police can engage in extended surveillance without a warrant? If I do it I might get arrested for stalking, so it doesn't seem outlandish to have the police involve a judge in the process.

The warrant process also happens to be agnostic to advances in data harvesting technology (i.e., even if omni-tracking like you speak of below becomes the norm, the use of the data in an investigation or prosecution could still be mediated with warrants).

There is a difference here. Police can follow you monitoring your whereabouts in public.

They don't follow you onto private property, this device can do that.

Also the only reason they put these on cars instead of on a person, say in a briefcase or a watch is b/c miniaturized active tracking tech isn't cheap/available enough--soon enough it will be.

Just about every car built in the past 3 or 4 years has a GPS tracker installed at the factory. It is called OnStar in GM cars or Sync in Ford cars.

Should any police officer be allowed to view the location records for any vehicle without a warrant? How about view all the records for all vehicles?

No, and no.

>* I do not think it is unreasonable for law enforcement agencies to designate, during the course of an actual investigation of a specific target, individual cars for GPS surveillance:

I don't understand where you draw the line. You don't think it's necessary for them to get a warrant, but you don't think they should be able to at-will tap into any OnStar system. Those, in my eyes, are virtually the same thing. The standard of "probable cause" has been around for a long time and it is in place because of the language of the Fourth Amendment which protects against "unreasonable" searches and seizures.

They're not the same thing for several reasons:

* The OnStar device is owned by the motorist, not the police.

* The device is installed on every car. I specifically do not think it's OK for the police to dragnet every car.

* The device is by design difficult, in the long run impossible, to remove; it's built into the car.

You seem fixed on the actual information the police are gaining: whether from OnStar or a portable telemetry device, they get a real time feed of where the car is going. Well, they get the same real-time feed from tailing the car. Tails do not require warrants.

The device is installed on every car.

Wait, what? Last time I looked, there were about 6 million vehicles with OnStar. It's certainly on a lot of new cars, maybe even most, but all? In any case, there's a good argument that reading off the GPS data from such a device wirelessly is less instrusive than physically attaching a device to the vehicle.

I was conceding the point of the comment I was responding to, of "all cars having some kind of telemetry in them", and I think in 5 years or so that will actually be true anyways.

I just don't agree that sticking a transponder on my car --- that I'm free to remove if I see it --- is really all that intrusive. It seems less intrusive than them staring through the windows of my car.

> Well, they get the same real-time feed from tailing the car. Tails do not require warrants.

I think that they should.

Tailing does, however, require significant resources on the part of the police department; a point which you seem to be purposefully ignoring, because it has been made by several responses to you up- and downthread.

Slapping a $200 GPS tracker on a car is a hell of a lot cheaper than paying for someone to tail you.

Every comment I've made here acknowledges that the whole idea behind the GPS tracker is to make it cheaper (and more effective and safer, but mostly cheaper) to tail people. I think that's a good thing. Believe it or not, I think that when the FBI wants to tail someone --- not snoop on their email, listen to their phone calls, paw through their garbage, pull their financial records, but actually tail someone --- I generally want them to be able to do that.

As has been said over and over and over by everyone literally everyone here including me, they clearly shouldn't have access to everyone's telemetry data by default. But $200 (and be honest it's the FBI they're probably paying $5000, but, sure, $200) seems fine to me. "If you are willing to put $200 on the line to do it, you should be able to tail someone from a computer screen instead of an unmarked car". Yes, that works for me.

Tapping into OnStar also gives an audio feed. Just FYI.

OnStar: way freakier than FBI GPS transponders. Stipulated.

Reply on news.ycombinator.com