A Supreme Court decision forced the FBI to turn off close to 3,000 Global Positioning System (GPS) devices used to track suspects, according to an ABC News article.
When the decision was reached earlier this year in U.S. v. Jones, FBI agents were ordered to stop using GPS tracking devices and informed that they should await further guidance regarding their removal, according to FBI general counsel Andrew Weissmann.
Weissmann was weary with the Supreme Court's ruling, mentioning that it lacked clarity and thus risked the possibility of being overturned.
The Jones case arose out of a conviction of night club owner Antoine Jones on drug charges. At issue in the case was law enforcement officials use of information gathered from a GPS device that was placed on a Jeep primarily used by Jones in order to link him to other co-conspirators.
Justice Scalia, writing for a 5-member majority, held that the installation and use of the device constituted a search under the Fourth Amendment and based his decision trespass grounds, overturning Jones' conviction.
"It is important to be clear about what occurred in this case," Scalia noted. "The government physically occupied private property for the purpose of obtaining information. We have no doubt that such a physical intrusion would have been considered a 'search' within the meaning of the Fourth Amendment."
Per usual the Supreme Court holding was narrow as it only directly impacted devices that were physically placed on vehicles.
However, Weissmann said that Justice Alito's concurring opinion, not the majority opinion caused turmoil within the bureau. His concurrence was joined by Justices Ginsburg, Breyer and Kagan. The 4 agreed with the outcome in the case but wrote separately because they got to that decision on different grounds.
Instead of focusing on the attachment of the device Alito focused on the fact that law enforcement personnel monitored Jones for about a month. "The use of longer-term GPS monitoring in investigations of most offenses impinges on expectations of privacy," said Alito. He was concerned that Scalia's reliance on laws of trespass, would "provide no protection" for surveillance accomplished without committing a trespass.
"For example," Alito observed, "suppose that the officers in the present case had followed respondent by surreptitiously activating a stolen vehicle detection system that came with the car when it was purchased?"
Further, Weissmann expressed concern that Alito's concurrence means that several members of the Court are concerned with long-term surveillance by technologies beyond GPS systems and that the FBI needs new guidance in order to ensure that evidence does not get thrown out.
He noted that the views expressed in the concurrence expressed a sea change in the department.
The problem was that after agents were told to turn off the devices they did not know which procedures that they could employ to remove existing devices without violating the law established by the Supreme Court. "It wasn't obvious that you could turn it back on to locate it because now you needed probable cause or reasonable suspicion to do that,"Weissmann said.
Although Weissmann and the FBI disagree with the Court's generalized ruling, Catherine Crump, an ACLU Attorney, praised the Court's ruling as a step in the right direction for preserving privacy rights.
"Alito's concurrence concerned the FBI because if tracking someone's movements violates their privacy, that should be true no matter what technology the FBI uses," says Crump.
Although, the Court's ruling is vague and lacks administrability one thing is for sure and that is that the decision marks a step back for the FBI and other law enforcement officials when tracking criminals in the future.
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