TRI In The News

Supremes Deciding How Close Government Can Watch You

October 05, 2011

10/5/2011

TRI IN THE NEWS: SUPREMES DECIDING HOW CLOSE GOVERNMENT CAN WATCH YOU

From World Net Daily

The Obama administration says that it has the right to attach a GPS unit to your vehicle and watch where you go, with whom you meet, where your children visit friends, whether you go to church or a bar or a bank – all in the hope that investigators could develop the "probable cause" they would need to get a formal court order to search you and your possessions.

Now it's up to the U.S. Supreme Court to determine whether that will be the standard of privacy going forward or whether the nation will return to the concept of privacy that precludes the government from taking invasive steps until after it's shown to a judge that you are doing something that likely is illegal.

The case involves defendant Antoine Jones, who was convicted in 2008 for possessing and planning to distribute more than 100 pounds of cocaine after officers in the District of Columbia attached a GPS device to his Jeep and watched his travels for five weeks.

Jones argued the actions were a warrantless surveillance and violated his Fourth Amendment rights. The appellate court agreed, but administration officials determined they would appeal to the high court hoping justices would affirm the much more casual interpretation of the idea of privacy.

The case has attracted wide interest, and a number of friend-of-the-court briefs on behalf of groups that would be affected were filed today.

"The government has argued that the 'attachment' of a GPS tracking device on the 'exterior' of the Jones' Jeep was at most a 'technical trespass,' and therefore, was neither a search nor a seizure within the meaning of the Fourth Amendment," said a brief filed on behalf the Gun Owners of America, Gun Owners Foundation. U.S. Justice Foundation, Institute on the Constitution, Center for Media and Democracy, Free Speech Coalition, Free Speech Defense and Education Fund, Conservative Legal Defense and Education Fund, Declaration Alliance, Restoring Liberty Action Committee, Lincoln Institute for Research and Education, Policy Analysis Center, Constitution Party National Committee and Libertarian National Committee.

The brief was assembled by Joseph W. Miller and Herbert W. Titus of the civil and human rights law offices of William J. Olson, as well as Gary Kreep of the United States Justice Foundation.

"The government offers two reasons for its position. First, it contends that there was no search or seizure because Jones had 'no reasonable expectation of privacy in the exterior of the vehicle.' Second, it contends that there was no search or seizure because the attachment did not 'meaningfully interfere with [Jones'] possessory interest in the vehicle.'"

But that argument posited on behalf of the federal government "utterly fails to take into account the security afforded Jones' private property by the Fourth Amendment, as it was originally written and purposed," the brief said. "The government demonstrates its total disregard for the historic common law foundation upon which the Fourth Amendment ban on searches and seizures is based."

The brief continued, "It was a deliberate act that the government made every effort to keep secret, and had Jones known about the device, he would have removed it. According to the government's line of reasoning, however, a trespass is a technical one when the trespasser's interest is of greater importance than the property owner's. Such a balancing act elevates the flagrant trespasser over the property owner."

Essentially, the federal government is arguing that police investigators and other authorities should be allowed to track American citizens in the U.S. to develop the "probable cause" needed for search warrants and other investigative tools.

"Although in some investigations the government could establish probable cause and obtain a warrant before using a GPS device, federal law enforcement agencies frequently use tracking devices early in investigations, before suspicions have ripened into probable cause. The court of appeals' decision prevents law enforcement officers from using GPS devices in an effort to gather information to establish probable cause," a government brief in the case explained.

The brief on behalf of the Gun Owners explains that an abandonment of the idea of privacy and limits on government would create undesirable precedents.

"If the government has the right to place a GPS device on a citizen's automobile to gather movement data, because no citizen has any reasonable expectation of privacy, why would that not automatically grant to all citizens a reciprocal right to place a GPS device on their neighbor's car, or even on a government official's car? Surely neither the neighbor nor the government official would have any different expectation of privacy. No doubt, however, if any citizen were to be so bold, the government would be quick to indict him, inter alia, for trespassing on government property – a trespass that the government would certainly not consider 'technical.' In a country where the people are sovereign, government officials cannot be considered above the law," the brief said.

Filing a friend-of-the-court brief on behalf of the National Motorists Association was John Whitehead of the Rutherford Institute.

"We have entered a new and frightening age when advancing technology is erasing the Fourth Amendment," said Whitehead. "Indeed, if the courts do not step in and protect against police searches and surveillance, privacy as we have known it will go the way of the graveyard."

In asking the U.S. Supreme Court to affirm the appellate refusal to allow the monitoring, Rutherford Institute attorneys point to numerous surveillance technologies available to the government, such as GPS, drones and facial recognition, that threaten the right of citizens to be free from government monitoring.

"While this technology can serve a useful purpose in apprehending criminals," the brief argued, "the essence of the Fourth Amendment dictates that law enforcement officials not be permitted free rein to conduct high-tech surveillance absent judicial oversight through the warranting process."

The Gun Owners brief warned that it wasn't just an authorization for this specific case that the government seeks.

"Rather, it strives for total victory – a judicial declaration that the Fourth Amendment does not ever apply to Global Positioning System ("GPS") monitoring, without regard for the facts that the government committed an illegal trespass to attach the GPS device onto private property, and then indiscriminately monitored the movement of the Jones vehicle, no matter the identity of the driver, the destination of the vehicle, or the length of time," the brief argues.

"[The] government’s principal argument is that surreptitious use of GPS tracking devices on private vehicles, while traveling on public roads, constitutes neither a search nor a seizure, and, therefore, that law enforcement is not constrained in any way by the Fourth Amendment in either the installation or use of GPS tracking equipment on private automobiles," the brief said.

"The government argues that there is no need for probable cause or even reasonable suspicion to place a tracking device on any automobile. The expectation of privacy rationale is deeply problematic. If the government were to announce and make known that it was recording all cell phone calls, preserving copies of all e-mails, intercepting all faxes, using cell phones to monitor conversations in a room even when no call was in progress, and that it had entered into an agreement with OnStar, TomTom, and Garmin to monitor in real time the position of all cars using that GPS equipment, one could say that no American would have any reasonable expectation of privacy. According to the government's theory then, no American would be able to claim that a Fourth Amendment search or a seizure of those communications or data transmissions had occurred."

Added Whitehead's brief: "At stake in this case is nothing less than the continued vitality of the Fourth Amendment in this modern technological age. This case presents an opportunity for the court to clarify the implications of the Fourth Amendment in the current landscape of surveillance technology – technology that can uncover nearly every detail of an individual's intimate life."

He said giving the government what it wants would "not only result in the destruction of the last vestiges of citizens' privacy, but would also have a serious chilling effect on the fundamental freedoms of speech, religious exercise, and association. With no end in sight for the realization of heretofore unimaginable surveillance capabilities, this court must fulfill its duty to establish meaningful limits on the use of these capabilities by police so as to ensure the continued efficacy of the Fourth Amendment in this digital age, and to preclude a subtle erosion of other liberties guaranteed to American citizens by the Bill of Rights. Requiring police to obtain a search warrant for the use of GPS and similar technology to monitor citizens is essential if the court is to ensure meaningful protection of these liberties."

The federal government's determination that people innocent of crimes are worthy of being watched already is documented.

WND reported in 2009, shortly after Obama took office, that a Department of Homeland Security report warned against the possibility of violence by unnamed "right-wing extremists" – people concerned about illegal immigration, increasing federal power, restrictions on firearms, abortion and the loss of U.S. sovereignty. The reported singled out returning war veterans as particular threats.

The report, "Right-wing Extremism: Current Economic and Political Climate Fueling Resurgence in Radicalization and Recruitment", said "threats from white supremacist and violent anti-government groups during 2009 have been largely rhetorical and have not indicated plans to carry out violent acts."

But it said worsening economic woes, potential new legislative restrictions on firearms and "the return of military veterans facing significant challenges reintegrating into their communities could lead to the potential emergence of terrorist groups or lone wolf extremists capable of carrying out violent attacks."

The report from DHS' Office of Intelligence and Analysis defined right-wing extremism in the U.S. as "divided into those groups, movements and adherents that are primarily hate-oriented (based on hatred of particular religious, racial or ethnic groups) and those that are mainly anti-government, rejecting federal authority in favor of state or local authority, or rejecting government authority entirely. It may include groups and individuals that are dedicated to a single issue, such as opposition to abortion or immigration."

It followed by only weeks a report from the Missouri Information Analysis Center that linked conservative groups to domestic terrorism.

That report warned law enforcement agencies to watch for suspicious individuals who may have bumper stickers for third-party political candidates such as Bob Barr and Chuck Baldwin. It further warned law enforcement to watch out for individuals with "radical" ideologies based on Christian views, such as opposing illegal immigration, abortion and federal taxes.