These are words that ought to chill you when delivered by an agent of the government.
Wired has the story of 20 year-old American citizen Yasir Afifi who discovered a GPS tracking device attached to his car. He removed it, took pictures of it, and posted those pictures on line asking viewers if they could identify it. Turns out it was an Orion Guardian ST820 tracking device.
People wondered if it was real.
The answer to that question came less than 24 hours later when the FBI came to recover their “expensive piece” of hardware. Afifi was told:
We’re here to recover the device you found on your vehicle. It’s federal property. It’s an expensive piece, and we need it right now.
When Afifi asked if the FBI had placed it on his car, the response was:
Yeah, I put it there. We’re going to make this much more difficult for you if you don’t cooperate.
Now the really chilling thing about this is that the FBI didn’t need a warrant to track the whereabouts of Mr. Afifi. They needed no probable cause, and didn’t have to convince a judge that it was necessary to put a tracker on his car, they could just do it to whomever they wished because the Ninth
Circus Circuit Court of Appeals has said it’s fine. In the January 11 decision of U.S. v. Pineda-Moreno the Court said:
…in United States v. Knotts, the Supreme Court held that law enforcement officers do not conduct a “search” cognizable under the Fourth Amendment by using a beeper to track a vehicle because “[a] person traveling in an automobile on public thoroughfares has no reasonable expectation of privacy in his movements from one place to another.”
Pineda-Moredo appealed for an en banc rehearing and that appeal was denied in August (PDF).
I am reminded, once again, of Judge Alex Kozinski’s unforgettable dissent in the denial of an en banc rehearing of the Silveira v. Lockyer case. In that one Kozinski wrote:
Judges know very well how to read the Constitution broadly when they are sympathetic to the right being asserted. We have held, without much ado, that “speech, or…the press” also means the Internet…and that “persons, houses, papers, and effects” also means public telephone booths….When a particular right comports especially well with our notions of good social policy, we build magnificent legal edifices on elliptical constitutional phrases – or even the white spaces between lines of constitutional text. But, as the panel amply demonstrates, when we’re none too keen on a particular constitutional guarantee, we can be equally ingenious in burying language that is incontrovertibly there.
It is wrong to use some constitutional provisions as springboards for major social change while treating others like senile relatives to be cooped up in a nursing home until they quit annoying us. As guardians of the Constitution, we must be consistent in interpreting its provisions. If we adopt a jurisprudence sympathetic to individual rights, we must give broad compass to all constitutional provisions that protect individuals from tyranny. If we take a more statist approach, we must give all such provisions narrow scope. Expanding some to gargantuan proportions while discarding others like a crumpled gum wrapper is not faithfully applying the Constitution; it’s using our power as federal judges to constitutionalize our personal preferences.
Kozinski also dissented in this case:
Having previously decimated the protections the Fourth Amendment accords to the home itself, United States v. Lemus, 596 F.3d 512 (9th Cir. 2010) (Kozinski, C.J., dissenting from the denial of rehearing en banc); United States v. Black, 482 F.3d 1044 (9th Cir. 2007) (Kozinski, J., dissenting from the denial of rehearing en banc), our court now proceeds to dismantle the zone of privacy we enjoy in the home’s curtilage and in public. The needs of law enforcement, to which my colleagues seem inclined to refuse nothing, are quickly making personal privacy a distant memory. 1984 may have come a bit later than predicted, but it’s here at last.
Read the whole dissent, it’s worth your time. And hey, it’s Kozinski. The man can write.
And remember: YOU HAVE NO EXPECTATION OF PRIVACY WHEN MOVING IN PUBLIC. The .gov can track you for any reason it feels like.
And if you find out they’re doing it, they can “make it very difficult for you” if you don’t cooperate.
Remember who your masters are! 1984 indeed.