Bizarre, Congress, Constitutional Law, Criminal law, Politics, Society

Obama Administration Argues For “Orwellian” New Powers To Track U.S. Citizens

As discussed in a prior column, many civil libertarians view President Barack Obama as betraying core civil liberties in expanding on Bush-era surveillance programs, secrecy orders, and other measures. Now, even conservative justices are questioning the Administration’s demand to be able to engage in round-the-clock surveillance of citizens without a warrant using GPS technology. The sweeping new claim would gut the protections of the Fourth Amendment in the latest attack on civil liberties by Barack Obama.


In the United States v. Jones (10-1259) case oral argument, Justice Stephen Breyer correctly noted “If you win this case, then there is nothing to prevent the police or the government from monitoring 24 hours a day the public movement of every citizen of the United States. So if you win, you suddenly produce what sounds like 1984 from their brief.” Even Chief Justice John Roberts who is often criticized for turning a blind eye to government intrusions raised concerns that the GPS surveillance would fundamentally alter the balance between citizens and police.

U.S. Deputy Solicitor General Michael Dreeben response was classic: don’t worry about the Constitution just rely on Congress to pass a law if we go to far. Congress, of course, has historically cared little about civil liberties and the Administration’s position would leave core liberties as simple matters for political voting.

Despite the growing opposition from civil libertarians who have vowed not to support his reelection, Obama appears to be doubling down on increasing police powers and limiting civil liberties. The Jones case represents an utter disregard for privacy and constitutional protections in favor of further increasing the already disturbing level of police powers in our society.

The case is particularly interesting because of the use of the Katz v. United States, 389 U.S. 347, 351 (1967). The government argues that there is no reasonable expectation of privacy because of the availability of GPS technology. For years, I have argued that our privacy rests on an increasingly uncertain foundation. When it was first handed down, Katz was a magnificent affirmation of privacy — declaring the Fourth Amendment “protects people not places.” However, the Court tied the protection to the “reasonable expectations” of citizens. As those expectations fall, the ability of the government to act without a warrant increases . . . which results in expectations again falling. The result is a downward spiral. The Administration is now playing on that weakness to argue for a broad new power of surveillance.

Source: The Hill

56 thoughts on “Obama Administration Argues For “Orwellian” New Powers To Track U.S. Citizens”

  2. http://www.wired.com/threatlevel/2011/11/gps-tracker-times-two/all/1

    Busted! Two New Fed GPS Trackers Found on SUV

    By Kim Zetter
    November 8, 2011

    As the Supreme Court gets ready to hear oral arguments in a case Tuesday that could determine if authorities can track U.S. citizens with GPS vehicle trackers without a warrant, a young man in California has come forward to Wired to reveal that he found not one but two different devices on his vehicle recently.

    The 25-year-old resident of San Jose, California, says he found the first one about three weeks ago on his Volvo SUV while visiting his mother in Modesto, about 80 miles northeast of San Jose. After contacting Wired and allowing a photographer to snap pictures of the device, it was swapped out and replaced with a second tracking device. A witness also reported seeing a strange man looking beneath the vehicle of the young man’s girlfriend while her car was parked at work, suggesting that a tracking device may have been retrieved from her car.

    Then things got really weird when police showed up during a Wired interview with the man.

    The young man, who asked to be identified only as Greg, is one among an increasing number of U.S. citizens who are finding themselves tracked with the high-tech devices.

    The Justice Department has said that law enforcement agents employ GPS as a crime-fighting tool with “great frequency,” and GPS retailers have told Wired that they’ve sold thousands of the devices to the feds.

    But little is known about how or how often law enforcement agents use them. And without a clear ruling requiring agents to obtain a “probable cause” warrant to use the devices, it leaves citizens who may have only a distant connection to a crime or no connection at all vulnerable to the whimsy of agents who are fishing for a case.

    The invasive technology, for example, allows police, the FBI, the Drug Enforcement Administration and other agencies to engage in covert round-the-clock surveillance over an extended period of time, collecting vast amounts of information about anyone who drives the vehicle that is being tracked.

    “A person who knows all of another’s travels can deduce whether he is a weekly church goer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts,” wrote U.S. Appeals Court Judge Douglas Ginsburg in a recent ruling that the Supreme Court will be examining this week to determine if warrants should be required for use with trackers.

    Greg says he discovered the first tracker on his vehicle after noticing what looked like a cell phone antenna inside a hole on his back bumper where a cable is stored for towing a trailer. The device, the size of a mobile phone, was not attached to a battery pack, suggesting the battery was embedded in its casing.

    The first GPS tracker found was slipped into a fabric sleeve, containing magnets, and placed on the underside of the vehicle in the wheel well of the spare tire.
    Photo: Jon Snyder/Wired.com

    A week later when he was back in San Jose, he checked the device, and it appeared to have been repositioned slightly on the vehicle to make it less visible. It was placed on the underside of the car in the wheel well that holds a spare tire.

    Greg, a Hispanic American who lives in San Jose at the home of his girlfriend’s parents, contacted Wired after reading a story published last year about an Arab-American citizen named Yasir Afifi who found a tracking device on his car. Greg wanted to know what he should do with the device.

    Afifi believed he was being tracked by authorities for six months before a mechanic discovered the device on his car when he took it into a garage for an oil change. He apparently came under surveillance after the FBI received a vague tip from someone who said Afifi might be a threat to national security. Afifi has filed a suit against the government, asserting that authorities violated his civil liberties by placing the device on his vehicle without a warrant and without suspicion of a crime. His attorney, Zahra Billoo, told Wired this week that she’s requested a stay in her client’s case, pending a ruling by the Supreme Court in the GPS tracking case now before it.

    Greg’s surveillance appears to involve different circumstances. It most likely involves a criminal drug investigation centered around his cousin, a Mexican citizen who fled across the border to that country a year ago and may have been involved in the drug trade as a dealer.

    “He took off. I think he was fleeing. I think he committed a crime,” Greg told Wired.com, asserting that he himself is not involved in drugs.

    Greg says he bought the SUV from his cousin in June, paying cash for it to a family member. He examined the car at the time and found no tracking device on it. A month later, he drove his cousin’s wife to Tijuana. Greg says he remained in Mexico a couple of days before returning to the U.S.

    The first GPS tracker, out of its sleeve. Photo courtesy of Greg.

    It’s possible the surveillance began shortly after his return, but Greg discovered the device only about three weeks ago during his visit to Modesto. The device was slipped into a sleeve that contained small magnets to affix it to the car.

    On Tuesday, Nov. 1, Wired photographer Jon Snyder went to San Jose to photograph the device. The next day, two males and one female appeared suddenly at the business where Greg’s girlfriend works, driving a Crown Victoria with tinted windows. A witness reported to Greg that one of the men jumped out of the car, bent under the front of the girlfriend’s car for a few seconds, then jumped back into the Crown Victoria and drove off. Wired was unable to confirm the story.

    The following day, Greg noticed that the GPS tracker on his own car had been replaced with a different tracker, this one encased in a clam shell cover attached to a large round magnet to hold the device to the car. The device was attached to a 3.6 VDC Lithium Polymer rechargeable battery.

    There was no writing on the tracker to identify its maker, but a label on the battery indicated that it’s sold by a small firm in Farmingdale, New York, called Revanche. A notice on a government web site last June indicates that it was seeking 500 of the batteries and 250 battery chargers for the Drug Enforcement Administration. A separate notice on the same site in 2008 refers to a contract for what appears to be a similar Revanche battery. The notice indicates the batteries work with GPS devices made by Nextel and Sendum.

    A spokeswoman with the DEA’s office in San Francisco, however, declined to say if the device on Greg’s vehicle was theirs.

    “We cannot comment on our means or methods that we use, so I cannot provide you with any additional information,” said DEA spokeswoman Casey McEnry.

    Second GPS tracker with clam shell casing and Lithium Polymer battery.
    Photo: Jon Snyder/Wired.com

    The second device on Greg’s vehicle appears to be a Sendum PT200 GPS tracker with the factory battery swapped out and replaced with the Revanche battery. The Sendum GPS tracker is marketed to private investigators, law enforcement and transportation security managers and sells for about $430 without the battery. With the factory battery “it will last 7-15 days reporting every hour in a good cellular coverage zone,” according to marketing literature describing it, and it uses CDMA cellular communications and gpsOne location services to determine its location.

    When this reporter drove down to meet Greg and photograph the second tracker with photographer Snyder, three police cars appeared at the location that had been pre-arranged with Greg, at various points driving directly behind me without making any verbal contact before leaving.

    After moving the photo shoot to a Rotten Robbie gas station a mile away from the first location, another police car showed up. In this case, the officer entered the station smiling at me and turned his car around to face the direction of Greg’s car, a couple hundred yards away. He remained there while the device was photographed. A passenger in the police car, dressed in civilian clothes, stepped out of the vehicle to fill a gas container, then the two left shortly before the photo shoot was completed.

    The Obama administration will be defending the warrantless use of such trackers in front of the Supreme Court on Tuesday morning. The administration, which is attempting to overturn a lower court ruling that threw out a drug dealer’s conviction over the warrantless use of a tracker, argues that citizens have no expectation of privacy when it comes to their movements in public so officers don’t need to get a warrant to use such devices.

    It’s unclear if authorities obtained a warrant to track Greg’s vehicle. While Greg says he’s committed no crimes and has nothing to hide, the not-so-stealthy police maneuver at his girlfriend’s place of employment makes it look to others like she’s involved in something nefarious, he says. That concerns him.

    It concerns attorney Billoo as well.

    “For a lot of us, it’s like, Well I’m not selling cocaine, so let them put a tracking device on the car of [a suspect] who is selling cocaine,” Billoo says. “And I’m not a terrorist, so let them put the device on someone [suspected of being] a terrorist. But it shouldn’t be unchecked authority on the part of police officers. If law enforcement doesn’t care to have their authority checked, then we’re in a lot of trouble.” (end of article)

  3. Blouise has a good idea about voting only for people who will repeal the patriot act. I don’t think that will, by itself do the trick, but it will help.

    This nation is very far gone. It will take the work of millions of courageous Americans who care about the lives of others to turn it around. It will be people saying enough! I won’t allow this to happen.

    This is a scary time. We clearly see the govt. is arrayed against the people. They have weapons and they are willing to use them on us. Our hope lies in something no totalitarian ever has-the will to make a good world. I don’t know how this will end. I only know it’s ending is assured should people stand by and do nothing.

  5. This isn’t the action of one man. It’s far deeper than Bush or Obama or whoever is next in line to move to the White House.

    The gladiators have taken over the government and not finding enough terrorists outside our borders have decided to do what gladiators always do … wage war on their own people.

    The coup took place back in 2001 when all the people and all the politicians were running scared and so frightened that they willingly turned over their liberty to the goons in the shadows. The Patriot Act of Oct. 26, 2001 – The title of the act is a ten letter acronym (USA PATRIOT) that stands for Uniting (and) Strengthening America (by) Providing Appropriate Tools Required (to) Intercept (and) Obstruct Terrorism Act of 2001. The act also expanded the definition of terrorism to include domestic terrorism, thus enlarging the number of activities to which the USA PATRIOT Act’s expanded law enforcement powers can be applied.

    Partisanship is a purposeful cover directing our eyes to those who have no power to control agencies now so firmly entrenched within the system that they are completely independent of it.

    Start at the bottom by electing only Senators and Representatives who will pledge to repeal the Patriot Act. Forget all this crap about presidents … The Act was passed in the House by 357 to 66 (of 435) and in the Senate by 98 to 1 and was supported by members of both the Republican and Democratic parties. These are the people who are responsible and these are the people who can restore our liberties.

  6. Supreme Court questions warrantless GPS tracking
    By MARK SHERMAN
    Bloomberg Businessweek/AP
    http://www.businessweek.com/ap/financialnews/D9QSME201.htm

    Excerpt:
    The Supreme Court expressed deep reservations Tuesday about police use of GPS technology to track criminal suspects without a warrant.

    But the justices appeared unsettled about how or whether to regulate GPS tracking, and whether they should look at other high-tech surveillance techniques in resolving this case.

    The court heard arguments in the Obama administration’s appeal of a court ruling that threw out a drug conspiracy conviction against Antoine Jones. FBI agents and local police did not have a valid search warrant when they installed a GPS device on Jones’ car and collected travel information.

    The justices were taken aback when the lawyer representing the government said police officers could install GPS devices on the justices’ cars and track their movements without a warrant.

    The court has previously ruled there is no expectation of privacy on public roads. But that decision came in a 1983 case involving the use of beeper technology, which still required officers to follow the vehicle they were tracking.

    Justice Samuel Alito captured the essence of the court’s concern when he said, “With computers around, it’s now so simple to amass an enormous amount of information. How do we deal with this? Just say nothing has changed?”

    Chief Justice John Roberts drew a comparison with artwork to explain the power of GPS surveillance. “You’re talking about the difference between seeing a little tile and a mosaic,” Roberts said.

    Justice Department lawyer Michael Dreeben said it would be better for lawmakers rather than judges to set limits. Dreeben said the concerns expressed Tuesday were similar to those in the earlier high court case. Thirty years ago, Dreeben said, “Beeper technology seemed extraordinarily advanced.”

    He also sought to portray GPS use as one among many police tracking methods that do not call for a warrant. Police can go through people’s trash, obtain information about who they call, even follow them round-the-clock without a warrant, he said.

  7. One other thing Big Brother has given us without telling you. Did you know that phosphorus and zinc are being removed from motor oils? Why, you ask? The official explanation is that it will reduce pollution and protect the catalytic converter. However, used motor oils are captured when oil is changed so it can be recycled, and catalytic converters have been used for decades with few problems.

    A more ominous explanation was given to me by my barber who is a serious antique automobile restorer. Some of his work has been featured on magazine covers. He tells me that older engines require higher levels of phosphorus and zinc in order to prevent spalling (metal on metal grinding) of the thrust bearings and tappets. He showed me several photographs of older engine bearings that had been ruined by the newer oils. He says the government and auto manufacturers want to ruin the older engines to get them off the road, so new engines/vehicles can be sold.

    If you have an older vehicle, you need to buy an oil additive that contains the proper amount of phosphorus and zinc in order to protect your engine bearings from the kinds of failure you see in the linked photo.

    http://www.tribology-abc.com/poll/case07.htm

  8. GPS is antiquated technology. Kagan and Breyer, I think, had it right when they mentioned that in the future, an intrusive technology like GPS won’t be required.
    ——————————
    the technology is not the point. PRIVACY is the point. I have a right to have a private life, a private place, to move about in society unfettered by stalking and I don’t give a rats ass whose doing the stalking. How are other Countries handling this situation?

    hint: It would be easier to enforce Privacy Laws if our Government didn’t have it’s head up the Golden butt of Corporate interests….

  10. Dredd,

    I feel each of the institutions you mentioned have failed us. They are integral to the police state. They ceased to function as a fail safe or alternative to it (not all but most). Despite that, people are fighting back.

  11. Hey, that is life in the greatest democracy in the history of the world, or is it?

    We now live in a society that believes, consistently over a period of years, that the most competent institution in America is the military, not the courts, the law schools, the congress, the universities, the churches, or the administration.

    How did that happen?

    It is time we look around to see the nation we actually live in, rather that fantasizing about what we wanted it to be, or still want it to be.

    You can’t repair a 49 Ford with 63 Chevy parts my friends, if you know what I mean.

  12. What Happened When I Tried to Get Some Answers About the Creepy NYPD Watchtower Monitoring OWS
    There’s a metal monster looming over Liberty Square, but don’t ask questions about it or else.
    November 6, 2011 |

    http://www.alternet.org/occupywallst/152954/what_happened_when_i_tried_to_get_some_answers_about_the_creepy_nypd_watchtower_monitoring_ows/?page=1

    “LIBERTY SQUARE – The drummers drummed. The guitarists strummed. And the hearty souls building a new society in Lower Manhattan’s Zuccotti Park traded in their tarps for tents as the temperature dropped. All the while, Officer Guzman stood watch.

    But there was something special about Officer Guzman. He wasn’t one of the 25 police officers I counted standing on the perimeter of Liberty Square that first wintery day. He wasn’t one of dozens more shooting the breeze with their partners inside a police van or sitting alone in a cruiser texting. Officer Guzman spent the day suspended in the air, two stories up, at the corner of Trinity Place and Liberty Street, inside a little metal box that goes by the name Sky Watch.

    For the initiated, Sky Watch is like one of those mechanical forest walkers from the Star Wars movies without the lasers or the walking. Imagine an 7-foot by 6-foot metal box, with blacked out windows on its four sides, bristling with cameras, spotlights, and a small spinning anemometer (to calculate wind speed), atop spindly hydraulic legs that allow it to sit on the ground or rise up two stories. Inside that climate-controlled cube is a control panel with switches to turn on the lights, a joystick to raise and lower the unit, and various other remote controls that Officer Guzman or someone like him can use to direct the cameras and watch their feeds on video screens (while they are recorded on multiple digital video recorders).

    Also used by the U.S. military, from Marines in the tiny African nation of Djibouti to sailors at a Navy base in the United Arab Emirates, as well as police departments all around the U.S., the 8,000-plus pound Panopticon-like structure — originally used by hunters to shoot quarry from overhead — has become a favorite of those who are partial to coercive surveillance. As the company that makes them puts it, Sky Watch provides “the vantage point necessary for law enforcement officials to deploy their forces to the greatest effectiveness while simultaneously acting providing [sic] a continuous crime deterrent.”

    “We have cameras for everything”

    Officer Guzman seemed like the strong silent type. At least he looked strong. But what I can most vouch for was his silence. He preferred to let other officers speak for him.

    When a couple of “special” cops came to gas up Guzman’s Sky Watch tower, I called out a question about how frequently they needed to feed the mechanical beast. “I can’t tell you that information,” was the cold response I got from one of the policemen. As I scrawled down the terse reply and snapped a few photos, another strode over to the metal barricade I was leaning on. “What’s your name?” he asked.

    Nick, what’s yours?

    Anthony. What, are you writing a report?

    I’m a reporter.

    Do you have some ID that says you’re a reporter?

    Nah, you guys like badges, not me.

    As I produced a couple pieces of identification, I asked why he needed to see ID from someone asking an innocuous question while standing on a public sidewalk. “What interests me is that you’re taking information about our Sky Watch and asking questions about our Sky Watch so it makes me wonder why you’re doing it. I’d like to know that.”

    Then I asked to see his ID. “You have my ID,” he said. But I didn’t. He was a fancy cop. No badge and nameplate on his chest, so I insisted. “I don’t. I only know your name is Anthony.” To his credit, he produced some. Anthony Torres. Shield #14528. So I told him of my interest in Sky Watch and the mini-surveillance state the police had set up more generally. Why, I asked, did the NYPD need a Sky Watch surveillance unit on-site when they also had a permanent camera stationed across the street from the park, a surveillance truck up the street with a camera on a 20-foot pole, dozens of cops stationed on the park’s perimeter at all times and, no doubt, other less conspicuous methods to spy on a park, already surrounded by metal pens, filled with unarmed, nonviolent protesters?…”

  14. Jill is correct — this is a pivotal decision — a pivotal moment… It’s imperative that we put the brakes on the encroaching police state or live to regret it.

  15. This is not Alex Jones / Infowars conspiracy theory stuff — but our recent Administrations certainly seem eager to turn Alex Jones from nutcase with a microphone to the last sane man.

  16. anon did not mention face recognition technology. Look for your published photograph to be in the database. Those official ID photographs for your drivers license and passport are the original source documents to be on file. Every time you pass by a security camera, the potential for tracking is there. That does not even count the times investigators might take your picture at a rally, demonstration, or just walking down the street.

  17. Oh yeahs, and of course in addition to ALPR, and STINGRAY, there will also be lots of photo recognition.

    Governor and DHS Secretary Janet Napolitano was in favor of putting photo radar on every freeway, but in addition, she wanted automatic photo recognition technology placed at the border between Arizona and her neighbor states. (http://terrorism.about.com/od/usforeignpolicy/a/Napolitano.htm)

    And of course, let’s not forget the drive to put RFID chips into passports and driver’s licenses.

    Why would the police bother with anything as intrusive as GPS?

    Why would either an libertarian or an originalist think our Founders would be against this?

  19. GPS is antiquated technology. Kagan and Breyer, I think, had it right when they mentioned that in the future, an intrusive technology like GPS won’t be required.

    RIGHT NOW

    We have Automatic License Plate Recognition being deployed in every police car, and mounted on every toll booth and in parking lots. There are devices known as STINGRAYs that can be used to spoof a cellphone tower, and thus aid in tracking a cellphone. And it will probably become easy to track many of the pieces of DNA that comes off a person, hair, cells as they walk down the streets.

    The police won’t need GPS to track people. So if we can’t find a right to this sort of privacy in the constitution, then what will have happened is that we will have allowed technology to obsolete the Bill of Rights.

    What I find amusing/sardonic is how the fine libertarian professor, Orin Kerr of the Volokh Conspiracy seems okay with this situation and seems to argue that yep, it’s not in the constitution, end of story.

  20. Our lizard overlords chose their lackey well. The face of Obama allows every injustice to go unchallenged. Fortunately, many people are waking up to the fact that wrong is wrong. There is a call to occupy the presidential caucuses and this should be done. It is unconscionable to allow these actions to go unchallenged.

    This is it. Either people pull their head out of the sand and take on the police state or they happily consign others to be harmed by it.

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