Good news

"You can tell a Finn but you can't tell him much" (youcantellafinn) 10/23/2013 at 10:45 • Filed to: None

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Some good news with respect to privacy. The government now needs a probable cause warrant to attach a GPS tracker to your vehicle. The Third Circuit Court of Appeals ruled in a 2-1 decision that the police can not attach a GPS tracker to a vehicle in the hopes that it might generate evidence to give them probable cause to get a warrant. The full article is on !!!error: Indecipherable SUB-paragraph formatting!!! and has the full decision embedded in PDF form.

The brothers filed a motion to suppress the evidence. The government argued that a warrant was not required for the tracker and that the search of the car was based on reasonable suspicion. The government also argued that if officers were required to obtain a warrant and have probable cause prior to executing a GPS search, “officers could not use GPS devices to gather information to establish probable cause, which is often the most productive use of such devices.”

The justices said the government’s statement “wags the dog rather vigorously,” noting that the primary reason for a search cannot be to generate evidence for law enforcement purposes. They also noted that “Generally speaking, a warrantless search is not rendered reasonable merely because probable cause existed that would have justified the issuance of a warrant.”

Tom McParland > You can tell a Finn but you can't tell him much 10/23/2013 at 10:50

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So no, GPS...but what about a banana in your tailpipe?

MontegoMan562 is a Capri RS Owner > You can tell a Finn but you can't tell him much 10/23/2013 at 10:59

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I AM THE ONE WHO TRACKS:

BKRM3 > You can tell a Finn but you can't tell him much 10/23/2013 at 10:59

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Reasonable suspicion is such a bunch of BS.

3d Cir. FTW! (my home Court of Appeals no less!)

davedave1111 > You can tell a Finn but you can't tell him much 10/23/2013 at 11:00

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I'm all in favour of restricting police powers, but to do so in this instance on privacy grounds seems a bit odd. Are the police also barred from following someone to track their movements, without probable cause?

Normally privacy doesn't apply to things you do in public, and the outside of your car is public.

Then again, clearly the police couldn't follow everyone for lack of resources, but sticking a tracker on a car is a hell of a lot cheaper.

As I understand it, the way things normally work is that police can stop your car on suspicion alone, but can't search it without probable cause - and can't stop you at all without at least some reason for suspicion. I'd have said sticking a tracker on a car ought to require the same level of evidence as a police stop, not as a search of private space.

You can tell a Finn but you can't tell him much > davedave1111 10/23/2013 at 11:13

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I'm in the camp that thinks attaching a tracking device to a car should require probable cause. Especially since the governments argument is that we needed to track these guys so we could come up with probable cause.

They need a warrant to get the GPS/location data from your phone, why shouldn't they need a warrant to continually track the location of your vehicle? And that in my mind is where the distinction comes in. Sure, they can follow you around for a while, but the resources to track someone are hard to come by. But they can slap a tracker on your vehicle for a couple hundred bucks and eventually they'll catch you doing something wrong.

The all seeing, all knowing government scares the shit out of me. And if we as citizens don't step up and say enough is enough sooner, it will become very difficult to step up and say that later.

davedave1111 > You can tell a Finn but you can't tell him much 10/23/2013 at 11:31

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If I understand rightly, it's now legal for a policeman to follow a suspect, but illegal to hand that off to an electronic device. Plainly, that doesn't make any sense.

It may well be that they're both wrong, and previously we've relied on resourcing issues to prevent the police becoming too intrusive and following us all around out of speculation. In general, though, we've always taken the view that the police can gather any information they like on someone's public activities, and misallocation of resources is a managerial/political matter.

When it comes to government intrusion, there are a lot of misconceptions out there. When it comes down to it, though, it's a hell of a lot easier to gather data than to process it and find the useful bits. Police, intelligence services, and so-on want the ability to monitor anyone, not the ability to monitor everyone - and that's a much more significant difference than it may at first seem. If they know Colin the Criminal is a baddie, they can gather useful data/evidence from looking at his facebook page, or tracking his car, or following him, or whatever. It's not possible, though, to gather all that evidence on everyone and use it to pick-out the crims.

It's not that I'm not as concerned as you about preserving civil liberties, but that I don't think the threat is where you place it.

You can tell a Finn but you can't tell him much > davedave1111 10/23/2013 at 12:19

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Right now it is legal for a police officer to follow someone. As long as they are in public. If the person were to drive to their personal residence or business, the officer would not be able to continue following them unless it was a "hot pursuit" situation. Sticking a GPS tracker is akin to having a police officer ride in the vehicle no matter where it goes, even if the vehicle travels to a privately owned location that would not be observable to the public. Granted, position location doesn't tell the police what the suspect is up to, but simply where they travel can and does say a lot about their activities.

davedave1111 > You can tell a Finn but you can't tell him much 10/23/2013 at 12:33

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Fair point, I didn't consider that. If someone goes in somewhere the police couldn't follow them, then the GPS data also shouldn't be admissible.

However you look at it, though, I think the same test ought to be applied to both methods of following someone.

You can tell a Finn but you can't tell him much > davedave1111 10/23/2013 at 16:26

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Peggy Noonan had a piece in the WSJ a while back about the loss of privacy. It was aimed at the NSA spying scandal but I think has some pretty serious implications with respect to GPS tracking of individuals as well. The article is behind a paywall, but if you're a subscriber you should be able to get it at wsj.com . If you google "peggy noonan: what we lose if we give up privacy" you should be able to find the whole text other places too.

davedave1111 > You can tell a Finn but you can't tell him much 10/23/2013 at 16:36

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I think you've missed the point I was trying to get at earlier; I'm a strong libertarian already. The NSA thing is precisely the kind of red herring I was talking about, though.

I don't think anyone who really cares about government intrusion knew little enough about things to find the Facebook revelations in any way surprising. ECHELON has been public knowledge for over fifty years now.

As with ECHELON, the problem isn't gathering intelligence, but sifting through it. Computers can only do so much before humans have to make some decisions, and the sheer weight of data from widespread surveillance rapidly becomes overwhelming - at least unless we're talking about a full-on police state.