SAN FRANCISCO — Yasir Afifi, a 20-year-old computer salesman and community college student, took his car in for an oil change this month, and his mechanic spotted an odd wire hanging from the undercarriage.
The wire was attached to a magnetic device that puzzled Afifi and the mechanic. They freed it from the car and posted images of it online, asking for help identifying it.
Two days later, FBI agents arrived at Afifi’s Santa Clara apartment and demanded the return of their property — a Global Positioning System tracking device now at the center of a legal debate over privacy rights.
One federal judge wrote that the widespread use of the device was straight out of George Orwell’s novel “1984.”
“By holding that this kind of surveillance doesn’t impair an individual’s reasonable expectation of privacy, the panel hands the government the power to track the movements of every one of us, every day of our lives,” wrote Alex Kozinski, chief judge of the 9th U.S. Circuit Court of Appeals, in a dissent in which a three-judge panel from his court ruled that search warrants weren’t necessary for GPS tracking.
But other federal and state courts have come to the opposite conclusion.
Law enforcement advocates for the devices say they can eliminate time-consuming stakeouts and old-fashioned “tails” with unmarked police cars. The technology had a starring role in the HBO cops-and-robbers series “The Wire,” and police use it to track every type of suspect — from terrorist to thieves stealing copper from air conditioners.
That investigators don’t need a warrant to use GPS tracking devices in California troubles privacy advocates, technophiles, criminal defense attorneys and others.
The federal appeals court based in Washington, D.C., said in August that investigators must obtain a warrant for GPS in tossing out the conviction and life sentence of Antoine Jones, a nightclub owner convicted of operating a cocaine distribution ring. That court concluded that the accumulation of four weeks’ worth of data collected from a GPS on Jones’ Jeep amounted to a government “search” that required a search warrant.
Legal scholars predict the U.S. Supreme Court will ultimately resolve the issue because so many courts disagree.
George Washington University law professor Orin Kerr said the issue boils down to public versus private. As long as the GPS devices are attached to vehicles on public roads, Kerr said, he thinks the U.S. Supreme Court will decide no warrant is needed. To decide otherwise, he said, would ignore a long line of previous Fourth Amendment decisions allowing for warrantless searches as long as they are conducted on public property.
All of which makes Afifi’s attorney pessimistic that he has much of a chance to file a successful lawsuit challenging the FBI’s actions. Afifi is represented by Zahra Billoo of the Council on American-Islamic Relations, the country’s largest Islamic civil rights group.
Afifi declined to comment after spending last week fielding myriad media inquiries after posted the story of his routine oil change and it went viral on the Internet.
Still, Billoo hopes the discovered GPS tracking device will help publicize in dramatic fashion the issue of racial profiling the lawyer says Arab-Americans routinely encounter.
“Yasir hasn’t done anything to warrant that kind of surveillance,” Billoo said.
How courts are ruling on the use of GPS tracking devices
9th U.S. Circuit Court of Appeals. The three-judge panel ruled that search warrants weren’t necessary. The panel concluded that agents could have gathered the same information by following Juan Pineda-Moreno, who was convicted of marijuana distribution after a GPS device alerted agents that he was leaving a suspected “grow site.” Two other federal appeals courts have ruled similarly.
Washington, D.C., federal appeals court. In August, the court ruled that investigators must obtain a warrant for GPS tracking. Judge Douglas Ginsburg said that watching suspect Antoine Jones’ Jeep for an entire month rather than trailing him on one trip made all the difference between surveilling a suspect on public property and a search needing court approval. The state high courts of New York, Washington and Oregon have ruled similarly.
