GPS ruling is "hard" on the FBI—and that's a feature, not a bug
arstechnica.com
arstechnica.com
Of course, that's kind of the point."
I have to echo Ars there: that's the damn point. I'd like that lawyer fired and pilloried for making such a gobsmackingly idiotic statement. "Innocent until proven guilty" is far superior to the Napoleonic-law opposite, and I can't muster any sympathy for US law enforcement agencies until at the very least they stop enforcing corporate policy over law and face some accountability for how often they shoot and kill citizens.
The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated. If no law enforcement agency enforces corporate policy over individual rights, do they all then get the right to invade privacy without a warrant? No, they don't.
My "should" above, is because it leads to polarization. Lots of people are not sympathetic to police, but lots of people are, and we don't want to nudge the latter in the direction of downplaying constitutional safeguards.
In my ideal world, law enforcement would never violate the standards they are bound by, and everyone would say, "I am sympathetic toward law enforcement agencies." And everyone would also say, "I do not grant them the right to invade privacy without a duly issued warrant."
"The fact is that U.S. law enforcement is bound by law (and the Constitution in particular) regardless of whether one is sympathetic to them, and regardless of whether or not legal standards are violated."
However, that's clearly not the only thing that they're bound by: there's an evolving discourse of law, and it's especially evident in the FBI lawyer's statement that many in the law enforcement community have a fundamental conflict - that they want to be Judge Dredd, not Sergeant Joe Friday. Law enforcement officers are bound by multiple and conflicting directives, and that means that they have no choice but to choose, to exercise discretion about which of those is most important. That's normal for most professions, but I argue that we should hold to far higher standards the people who get to legally use force.
My favorite example is micro-scale: speeding isn't actually very dangerous among the things you can get ticketed for while driving, but it makes up the lion's share of the tickets handed out because it's easy to enforce. You can point to a specific number from a mechanical device and say "there: that proves that this person was speeding." Other driving behaviors, often more dangerous, can't be so directly quantified, and so are more of a pain in the ass to enforce - and are enforced less. The conflicting directives result in a sub-optimal outcome.
Law enforcement officers in the US are not bad people: they're normal people, like you'd expect. The problem is that when you give normal people power without accountability, evil results. As the FBI shows in the linked article, they vigorously resist any effort at making them accountable - which is why it's so critical to heap on the accountability. Further, bringing me back to agreeing with you, the standards that they're bound by and accountable to, should be as clear as possible. The fuzz in the directives is part of the expanding power of law enforcement agencies, and we should acknowledge and actively work to counter that tendency towards expanding power without expanding accountability.
Given that the police is a profession that enables the use of deadly force, they absolutely need to be held to higher standards. But at the same time, it's almost a fundamentally flaw premise. Look at it this way, police have incentive for crime to continue (hence the neverending war on drugs). It allows them to get paid more, argue for more budget etc.
Unfortunately, expanding accountability at this point is far too little too late as organizations have been pretty much doing whatever they want in the name of security (Exhibit A: TSA). The system really needs a major reset in order to get back some semblance of actual balance.
Like it or not, ours is an adversarial legal system. To a first approximation, this case is an issue of civil liberties vs security, and as a lawyer representing the side of security, it's his responsibility to stand up for security. I agree with the ACLU's position on this matter 100%, but I don't fault the lawyer for stating that position.
Security is one of the several, contradictory responsibilities in the Constitution[1], along with personal liberties. It's something the government is supposed to ensure, and it's not wrong for a lawyer to mention the potential repercussions of a ruling towards their ability to fulfill that responsibility. Now, if it were a judge making that statement, I'd flip my shit. It's a judge's duty to balance the competing concerns, and it's the lawyers' place to advocate for one or the other. The lawyer did his job, stating the resultant effect on the issue he was advocating. And the judge did his job, deciding that despite that result, other competing concerns were more important.
[1] For a partial list of such responsibilities, check the Preamble to the Constitution, which enumerates at least 6:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America.
As long as they keep everything top secret, except when they stumble on something big (then tip off the FBI), who's going to complain?
But as pointed out, if >90% of your cases already can meet that threshold according to a (theoretically) independent judiciary, then you don't really have a problem. Perhaps the other 10% reflected the abuses we want to prevent, or perhaps just sloppy police work.
Either way, the warrant requirement is a security control against abusive law enforcement. After all, by their own reasoning, if they've done nothing wrong, then they've nothing to hide (from a judge), right?
Interestingly, the story concluded by noting that the FBI would probably just depend more often on cell phone tracking records, which companies will often provide in response to a prosecutorial subpoena even without a judge's signature.
Cell phone records, while controversial, are generally business records of the wireless telco and thus don't always enjoy the same protection. Personally, I'd like to see them get similar requirements for disclosure to law enforcement, but in the current political climate that seems unlikely.
See http://news.ycombinator.com/item?id=3619088 and http://theunderstatement.com/post/18030062041/its-a-brick-te... (under Prevention Measures).
"After the first 500 Roadsters, Tesla added a remote monitoring system to the vehicles, connecting through AT&T’s GSM-based cellular network. Tesla uses this system to monitor various vehicle metrics including the battery charge levels, as long as the vehicle has the GSM connection activated4 and is within range of AT&T’s network. According to the Tesla service manager, Tesla has used this information on multiple occasions to proactively telephone customers to warn them when their Roadster’s battery was dangerously low.
In at least one case, Tesla went even further. The Tesla service manager admitted that, unable to contact an owner by phone, Tesla remotely activated a dying vehicle’s GPS to determine its location and then dispatched Tesla staff to go there. It is not clear if Tesla had obtained this owner’s consent to allow this tracking5, or if the owner is even aware that his vehicle had been tracked. Further, the service manager acknowledged that this use of tracking was not something they generally tell customers about.
Going to these lengths could be seen as customer service, but it would also seem to fit with an internal awareness at Tesla of the gravity of the “bricking” problem, and the potentially disastrous public relations and sales fallout that could result from it becoming more broadly known."
>GPS ruling is "hard" on the FBI
Good.
What's bad for the big brother wannabees is almost certainly a win for the common man.
That is a terrifying sentence.
I think the FBI lawyer is pointing out that as the scope of what constitutes a search expands the harder it becomes to establish probable cause in the first place.
I agree with the article, that if 90% of the affected GPS trackers could demonstrate probable cause to get a warrant then the FBI doesn't really have cause to complain (about this one ruling). However, I don't think that invalidates the quote.
I think the quote is literally true and shouldn't be taken as anything but a FBI lawyer talking about the limitations that the agency faces but like the article says the limitations aren't necessarily a bug.
Edit: Clarity
Thank goodness they have National Security Letters to fall back on.
Granted I'm betting some of those 250 were "bad people" but considering the previous articles about these devices, I'm willing to bet a lot of those 250 people weren't even close to being dangerous and were just a waste of taxpayer money.
This means that the same level of invasion of privacy will occur (potentially more since physical surveillance can gather more information than a GPS tracker) but with less court approval and more cost.
Of course if we assume that the FBI was only tracking those 250 suspects because it was easy to do so then you're probably correct that turning them off will be a net saving to the tax payer.
In some ways that seems more broadly invasive than GPS, in that it captures information about thousands of individuals who aren't being specifically observed.
Truly Wild Wild West. Nothing will teach them that there need to stay under the law just like anyone else.
Mr. Meuller: why don't we go one step further; how about proposal to build safe and secure prisons and just simply lock everyone in??!! Won't that actually stop every possible crime from happening?? I mean: all the thefts, murders, rapes, it all can be avoid and stopped if you kindly please lock us all in!
also my other comment: http://news.ycombinator.com/item?id=3635602
They should have had to get a warrant before they put any tracking device anywhere (and I'm willing to bet they knew that) and they should have been smacked down for every instance where they didn't.
He should be disbarred. No doubt it's easier for "law enforcement" in China and North Korea