FBI Admits It Used GPS Tracking on 250 People without Probable Cause

NPR’s Carrie Johnson puts together the numbers on how many GPS trackers the FBI had to get warrants for after US v Jones held that you need a warrant to attach a GPS tracker to a car. And while she doesn’t state it this way, what the FBI basically admitted is that in 250 of the 3,000 cases where they had GPS units activated but no warrant–over 8% of the GPS devices in question–they lacked probable cause.

Before the Supreme Court ruling in late January, the FBI had about 3,000 GPS tracking devices in the field.

Government lawyers scrambled to get search warrants for weeks before the decision, working to convince judges they had probable cause to believe crimes were taking place.

But after the ruling, FBI officials tell NPR, agents still had to turn off 250 devices that they couldn’t turn back on.

FBI General Counsel Andrew Weissmann even admits to Johnson that they were using GPS tracking to get probable cause.

Weissmann says FBI agents in the field need clear rules. So, for now, he’s telling agents who are in doubt “to obtain a warrant to protect your investigation.”

But he says that’s not always possible.

“And the problem with that is that a search warrant requires probable cause to be shown and many of these techniques are things that you use in order to establish probable cause,” Weissmann says. “If you require probable cause for every technique, then you are making it very very hard for law enforcement.”

Now, I can understand why Weissmann and Robert Mueller would like to use GPS in the examples Mueller cited–where they have things like Internet statements and gun purchases.

But last I checked both of those things were constitutionally protected activities themselves.

So what the FBI’s reaction to Jones has really revealed is that it had been violating the Fourth Amendment protections of around 250 people to get around their First and Second Amendment protections.

Marcy has been blogging full time since 2007. She’s known for her live-blogging of the Scooter Libby trial, her discovery of the number of times Khalid Sheikh Mohammed was waterboarded, and generally for her weedy analysis of document dumps.

Marcy Wheeler is an independent journalist writing about national security and civil liberties. She writes as emptywheel at her eponymous blog, publishes at outlets including the Guardian, Salon, and the Progressive, and appears frequently on television and radio. She is the author of Anatomy of Deceit, a primer on the CIA leak investigation, and liveblogged the Scooter Libby trial.

Marcy has a PhD from the University of Michigan, where she researched the “feuilleton,” a short conversational newspaper form that has proven important in times of heightened censorship. Before and after her time in academics, Marcy provided documentation consulting for corporations in the auto, tech, and energy industries. She lives with her spouse and dog in Grand Rapids, MI.

14 replies
  1. Arbusto says:

    What’s the legality of tracking someone’s cell phone location as opposed to physically attaching a gps device to a vehicle? I’m sure the NSA, CIA, DIA, FBI and any number of alphabet agencies get a great discount for online tracking. Technology has far outstripped Governmental constraint, law and morality while Agents and employees desire to pursue a person regardless of justification feed the beast.

  2. MadDog says:

    “…[T]he FBI basically admitted is that in 250 of the 3,000 cases where they had GPS units activated but no warrant–over 8% of the GPS devices in question–they lacked probable cause…”

    Do we think that was it? Not bloody likely! Think tip of the iceberg.

    Add to that 250 warrantless FBI GPS tracking units thousands more run by local and state law enforcement. Think the NYPD didn’t get in the game? Think again! LAPD and LASD? Ditto!

    And don’t forget the multitude of other Federal agencies. DEA, ATF, ICE, etc.

    There is no way that the suppliers of GPS tracking units would survive, much less prosper, on the FBI contracts alone.

    Think ubiquitous and you’ll be getting close.

  3. What Constitution? says:

    @Arbusto — Of course they do. They have a memo on it. Written by a lawyer. Don’t ask to see it.

  4. spanishinquisition says:

    “And the problem with that is that a search warrant requires probable cause to be shown and many of these techniques are things that you use in order to establish probable cause,” Weissmann says. “If you require probable cause for every technique, then you are making it very very hard for law enforcement.”

    Just wait for Mr Constitutional Scholar to redefine “Probable Cause” just like how Constitutional Scholar-In-Chief is redefining “Due Process.” Then again, if as Mr Constitutional Scholar wants it, he doesn’t have to worry about probable cause if there is no due process – he alone can be Judge, Jury and Assassinator without having the pesky courts get in the way.

  5. PeasantParty says:

    Well, well. I’m guessing this means that any old non-governmental agency that is procured/contracted to do these types of things has the same leeway to stomp on Constitutional rights, right?

    Without probable cause, and due process that would mean that other professionals can take on what is normally a government or police type of duty. It would also mean that if someone wanted to do the same kind of spy games on Lobbyist and Bankers it would be just as legal, right?

    Man, O–MAN! What a can of worms they are setting loose!

  6. pdaly says:

    @emptywheel:

    I’d like to see the OLC memo on that one, too.

    GPS in cellphones became a requirement by law for ‘our protection’, I believe we were told.

    I don’t think, other than not buying a cellphone, there is an opt out choice for GPS tracking among cell phone users.

    Since no opt out choice exists, and since GPS tracking is mandated by law, this does imply people never willingly give up their right to privacy. GPS tracking was forced on the country.

    Seems that GPS tracking information, therefore, should be protected information requiring a court order to obtain. It should not be left to some backroom business deal between phone companies and the government, paid for by tax payers, phone customers, and in some cases both. <– I assume, for example, bank CEOs are phone customers if not necessarily taxpayers…

  7. pdaly says:

    I think this should be part of the title of the post, too. Great summary of the issue.

    “the FBI’s reaction to Jones has really revealed is that it had been violating the Fourth Amendment protections of around 250 people to get around their First and Second Amendment protections.”

  8. Dirty Masquerade says:

    Defense Attorneys for Hutaree militia Ask for Mistrial – Claim Feds withheld key information, prosecutors failed to meet their obligation

    Attorneys for seven members of a Michigan-based militia charged with plotting to overthrow the government asked a judge to declare a mistrial Wednesday, claiming they should have been told earlier about a previous case handled by the FBI agent who infiltrated the group.

    The defense attorneys found out only this week that agent Steve Haug was the FBI handler for a New Jersey man who was paid to collect information on white supremacists and hate groups, starting in 2003. The informant, Hal Turner, was a right-wing radio host and blogger who made threats against critics and public officials while on the FBI payroll.

    Under federal law, the government is required to turn over material that could aid a defendant or impeach the credibility of a witness. William Swor, attorney for Hutaree militia leader David Stone, said prosecutors failed to meet their obligation.

    http://www.mlive.com/newsflash/index.ssf/story/defense-feds-held-key-info-in-mich/0dc814bdc3244900930dfe45cec00f84

  9. bmaz says:

    @Dirty Masquerade: After Stevens and a couple of other cases I cited here, this is going to be argued in EVERY trial case now. You have to if there is any, and I mean any, possible tiny sliver of fact to frame it on, in order to preserve it as a possible appellate ground. In this case, I think they are likely going nowhere. I highly doubt any trial or appellate court is going to find the Haug/Turner history to be significant enough of collateral impeachment to warrant any relief.

  10. Big disgrace, kicking your can says:

    The Human Rights Committee is now reviewing US government compliance with the Covenant on Civil and Political Rights. So no doubt the assessment by a world-class expert panel of our government’s contempt for Article 17 will be a big campaign issue, Right? There’s some effort to do antiwar bird-dogging of Dem candidates, but the ongoning work of the Human Rights Committee (and now the Committee against Torture, too) could be used to embarrass the hell out of our ruling junta.

  11. pdaly says:

    OT: Today at 10am EDT (i.e., right now) the Boston NPR affiliate WBUR is interviewing James Bamford about the new NSA surveillance center being built in Utah.

    Radio host Tom Ashbrook takes questions live on the air (1-800-423-8255)
    and he also reads facebook comments and Twitter comments on air– in case anyone wants to tweet NPR and Mr. Bamford.

    Links to WBUR’s On Point facebook and Twitter accounts are here: http://onpoint.wbur.org/2012/03/22/nsa-spy-hub

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