In July, the ACLU requested two memos under the Freedom of Information Act (FOIA) that the FBI wrote in February. The memos came as a result of the Supreme Court decision in the Jones v. United States case, which established that the government had no right to place a GPS tracking device without a warrant on a suspect’s car.
However, other types of high-tech surveillance and monitoring continues by law enforcement on a nearly daily basis around the country. Cops are using everything from tap and trace, ping data,license plate surveillance, and other techniques as a way to keep tabs on suspects and innocent citizens without going through the threshold of a judicially reviewed probable-cause-driven warrant.
“We still have no idea what the FBI is doing in terms of tracking, post-Jones,” said Catherine Crump, the author of the Complaint for Injunctive Relief, and an attorney at the ACLU, in an interview with Ars.
“If all Jones means is that law enforcement agents have to track you through your phone instead of your car, it’s not going to mean much in the end.”
Despite the unanimous decision by the Supreme Court in January 2012 in the Jones case, legal scholars seem to now have more questions than answers.
“One question I have is whether the FBI is treating Jones as relevant to surveillance technologies that don’t require physical attachment to individuals or vehicles,” wrote Woodrow Hartzog, a law professor at Samford University in Alabama, in an e-mail sent to Ars.
“For example, does the FBI think that Jones has relevance to facial and object recognition technologies deployed in public places? What about license plate readers? While the concurring opinions in Jones certainly questioned certain concepts such as the third-party doctrine and the idea of no privacy in public, the case was actually decided by the majority on much narrower, trespass-based grounds. I’d be interested to see if these guides are concerned primarily with the attachment and use of GPS devices, or whether they are mindful of the concurring opinions’ skepticism of the proposition that there can be no privacy at all in public spaces or in information that is shared with others. In a sense, Jones punted on some of the larger privacy issues surrounding modern surveillance technologies.”
Up next: GPS tracking of your boat?
The ACLU first caught wind of the two FBI memos in question after hearing FBI General Counsel Andrew Weissmann speak at a legal conference in San Francisco in February 2012.
In a 12-minute video posted online, Weissmann spoke about two memos: one focused on the use of GPS tracking on forms of transportation beyond cars, the other speaking on how Jones applies to tracking methods outside of GPS (presumably like cellphone ping data).
“Is it going to apply to boats, is it going to apply to airplanes?” Weissmann asks in the video. “Is it going to apply at the border? What’s it mean for the consent that’s given by an owner? What does it mean if consent is given by a possessor? And this is all about GPS, by the way, without getting into other types of techniques.”
The ACLU is not the first group to compel the FBI to release these memos. The Electronic Frontier Foundation has also been working on their publication as well, according to Mark Rumold, a staff attorney at the EFF.
“We would just like to know how the government interprets the Supreme Court’s opinion,” Rumold told Ars. “Fundamentally, that’s the type of information that can’t be withheld under FOIA. The government’s interpretation of rules and laws that affect the general public—that’s a fundamental precept, that secret law is an abomination.”