From: Tom Ritter <tom@ritter.vg>
On 10 July 2015 at 10:58, <dan@geer.org> wrote:

>> Well, now we are into dueling Supreme Court cases; see
>>
>> http://caselaw.findlaw.com/us-supreme-court/533/27.html
>> Kyllo v. United States (2001)
>> Despite the Court's attempt to draw a line that is "not only
>> firm but also bright," ante, at 12, the contours of its new rule
>> are uncertain because its protection apparently dissipates as
>> soon as the relevant technology is "in general public use," ante,
>> at 6-7. Yet how much use is general public use is not even hinted
>> at by the Court's opinion, which makes the somewhat doubtful
>> assumption that the thermal imager used in this case does not
>> satisfy that criterion. In any event, putting aside its lack
>> of clarity, this criterion is somewhat perverse because it seems
>> likely that the threat to privacy will grow, rather than recede,
>> as the use of intrusive equipment becomes more readily available.

>Yes! That's the case I was obliquely referring to. Sorry, I kind of
>glazed over that part of your argument in the article.

> That reads, to me, that what the public adopts limits what I can
> do or expect.

>I guess where we quibble is I'm skeptical that the general public (as
>defined by the courts?) will (ever?) adopt the types of tools you
>refer to (uniquely identifying individuals based on electromagnetics,
>tracking tire pressure sensors.) I don't think the 'general public'
>has adopted thermal imagers. These will make their way into
>industry... (advertisers tracking WiFi probes in malls obviously).

Months ago, FLIR announced an IR-imaging add-on for IPhones, which is tiny. However, just a month or two ago I saw a media reference to a (very tiny) T-shaped device, intended to plug into the micro-USB jack of a cell phone, that did IR imaging. As I recall, very economical, but even then the majority of the population won't buy, simply because they have no need for such a thing most of the time.

>So my wonder now is if industry adopting a technology is sufficient
>for the courts to qualify as 'general public'. But this, at best, only
>affects exotic technology. We're already fighting this battle.

>Automated license plate readers have never (?) been challenged
>(successfully?). They are an extension of "a police officer just
>watching a highway" which is legal. And the courts like extensions of
>things that are already done - see bulk collection of metadata!

This 'extension' principle doesn't always work. In 2012, the Supreme Court ruled (US v. Jones) https://www.law.cornell.edu/wex/united_states_v._jones_%282012%29 that police could not place a GPS tracking device on a car without a warrant. One argument that has been rejected in lower-court cases was the idea that in principle, a car's movements could be tracked with an army of police, one per street corner, so that a GPS tracking bug simply automated that process. One problem that argument is that society not only doesn't have the resources to accomplish such a blanket coverage of an area, and that even if practical, society may not necessarily want such an intrusive system to exist.

This issue was (secretly) quite relevant to me. Federal authorities apparently installed a tracking device on a car I used, probably in about April 2000, without a warrant. Presumably, if challenged they would have been claiming to follow a 9th Circuit Court of Appeals decision from 1999, U.S. v. McIver, which had allowed the placement of a GPS tracking device on a truck seen at the location of a marijuana growing operation. The problem with this justification, however, is that at least in McIver, there was an actual crime involved, and the truck was plausibly involved in that crime. In my case, after my release from prison in April 2000, nobody alleged that I was engaging in any crime. The McIver case didn't rule that police could simply choose to place a GPS tracking device on ANY car, for no reason, and even without 'probable cause' or 'reasonable suspicion'.

What was particularly devious (and I call illegal) was that later, probably in October 2000, the Feds actually obtained a warrant for the placement of ANOTHER tracking device on the same car (which, of course, may have ended up being the same device!) WITHOUT telling the judge that a tracking device was already on the car, and had been so since at least as early as April 2000. Why the subterfuge? They later used the result of the tracking device (at least, the portion taken after the October warrant) against me in court. But they continued to conceal the fact that a GPS device had been placed since perhaps April 2000. Presumably, they concealed that because they would have had to explain, in court, why they were tracking me, without a warrant, and despite the fact that they had no 'probable cause' nor 'reasonable suspicion' to do so. To conceal that, they obtained the warrant, making it appear that the GPS surveillance started in October 2000. This was fraud, because in order to obtain a warrant, they have to explain WHY they need the GPS device installed. Clearly, since a GPS device was already installed in the car, there was no need to place one. THAT misrepresented the need to the judge.

You might ask, "Jim, why didn't you complain about this during the trial". As you might know, I was given a long series of lawyers who, rather than being the first line of defense for me, were actually the first line of OFFENCE for the government. What the average person doesn't understand is that a defense attorney, colluding with the government, has virtually unlimited power to sabotage his client's case, and that was precisely what happened to me. The crooked attorney was Robert Leen.

And it turned out that the government had a powerful motivation, or at least some of its employees: They had faked an 'appeal' case in the 9th Circuit, 99-30210, forging at least two filings as if I had done them 'pro se', as if I was bring that case. I did not, and I wasn't aware of the pre-May 2000 existence of that faked case until June 2003, when I first saw that case's docket. The crooked attorney who concealed this from me was Jonathan Solovy.

Jim Bell