Speaking at the University of San Francisco last Friday, FBI General Counsel Andrew Weissmann said a recent Supreme Court ruling is ushering in a “sea change” within the U.S. Justice Department as the agency moves to disable some 3,000 GPS tracking devices installed underneath vehicles to track their movements—although, in some cases, the FBI has had to seek permission to turn the devices back on briefly so they can be located and removed.
Weissmann’s remarks were first reported in The Wall Street Journal (subscription required).
The FBI’s actions to disable the tracking devices comes in the wake of the Supreme Court’s January 23rd ruling (PDF) in a case against Antoine Jones. The case dates to 2004; Jones was suspected of drug trafficking, and the FBI obtained a warrant to install a GPS tracking device on a Jeep Cherokee registerred to his wife. However, the warrant expired a day before the FBI was able to install the device, and when the agency did manage to install the tracking device, it did so in Maryland rather than the District of Columbia, which was the only jurisdiction covered by the original warrant.
The Justice Department suppressed collection of GPS data while the car was parked at Jones’ residence, but argued that Jones had no reasonable expectation of privacy while driving on public streets. However, the Supreme Court disagreed, finding that the FBI’s use of the tracking device constituted a search under the Fourth Amendment, which guards against “unreasonable” searches and seizures. The Supreme Court even went a step further, ruling the Fourth Amendment still applies when law enforcement personnel trespass on a person’s property to gather information, even if that person has no reasonable expectation of privacy at the time.
As a result of the ruling, Weissmann says the FBI has disabled about 3,000 GPS tracking devices that were in use to track vehicle movements, although he acknowledged in some cases the agency has had to seek court orders to briefly reactivate the devices so they can be located, then removed.
Weissmann noted that the agency is now working on new guidelines and policies regarding deployment of GPS tracking devices, and is considering the implications of the trespass portion of the Supreme Court’s ruling. For instance, Weissman indicated the ruling calls into question whether agents would be committed trespass if they lifted the lid on a garbage can, since the Supreme Court opinion was based on the that attaching a GPS tracking device to a car constitutes trespass. Presumably, the ruling could also impact how the FBI manages devices: for instance, if a tracking device’s battery fails after a warrant expires or outside a jurisdiction, can the FBI change the battery without violating Fourth Amendment rights?
It’s worth noting that Justice Scalia, writing for the majority, maintains the court is not opening new Fourth Amendment protections with its ruling, but merely continuing to apply the understanding of the Fourth Amendment as set down in the Constitution. The Fourth Amendment protects not just a person from unreasonable searches and seizures, but also their houses, papers, and effects. Legal precedent clearly establishes a vehicle as an “effect.”