Battle Brews Over FBI’s Warrantless GPS Tracking

[Eugen Leitl]

http://www.wired.com/threatlevel/2011/05/gps/

Battle Brews Over FBIbs Warrantless GPS Tracking

    By Kim Zetter Email Author

    May 9, 2011  | 

    7:00 am  | 

    Categories: Surveillance

An abandoned FBI vehicle-tracking device.  Photo: Jon Snyder/Wired.com

Kathy Thomas knew she was under surveillance. The animal rights and
environmental activist had been trailed daily by cops over several months,
and had even been stopped on occasion by police and FBI agents.

FBI Vehicle-Tracking Device: The Teardown

Video: The Dissection of an FBI Bumper-Beeper

How to Check Your Car for a GPS Tracker

But when the surveillance seemed to halt suddenly in mid-2005 after she
confronted one of the agents, she thought it was all over. Months went by
without a peep from the FBI surveillance teams that had been tracking her in
undercover vehicles and helicopters. Thatbs when it occurred to her to check
her car.

Rumors had been swirling among activists that the FBI might be using GPS to
track them b two activists in Colorado discovered mysterious devices attached
to their car bumpers in 2003 b so Thomas (a pseudonym) went out to the
vehicle in a frenzy and ran her hands beneath the rear bumper. She was only
half-surprised to find a small electronic device and foot-long battery wand
secured to her metal fender with industrial-strength magnets.

bI think I must have found it right after they put it on, because there was
no grime on it at all,b she told Wired.com recently.  How Vehicle Tracking
Works

Law enforcement secretly installs the tracking device on a target's car. Some
models are hidden in the engine compartment and wired to the car battery.
Others are slapped to the undercarriage with industrial-strength magnets.

As the target drives around, the tracking device triangulates its position
from three or four GPS satellites, and digitally transmits its coordinates
continuously by radio.

The law enforcement agency receives the coordinates and displays the target's
location in real time on a computerized map, keeping a record of the target's
movement.  Illustration: Mitsu Overstreet/Wired.com

The use of GPS tracking devices is poised to become one of the most
contentious privacy issues before the Supreme Court, should the high court
agree to hear an appeal filed by the Obama administration last month. The
administration is seeking to overturn a ruling by a lower court that law
enforcement officials must obtain a warrant before using a tracker.

The constitutional matter until now has been left to district courts around
the country to decide, resulting in a patchwork of conflicting rulings about
the need for warrants. Meanwhile, a federal lawsuit filed in March by an
Arab-American college student named Yasir Afifi alleges that the FBI violated
his privacy rights when the agency placed a GPS device on his car without a
warrant, and that the bureau targeted him simply because of his ethnic
background.

In the midst of this legal controversy, Threat Level decided to take a look
inside one of the devices b which are generally custom-made for law
enforcement. Working with the teardown artists at iFixit, we examined the
device Thomas found on her car nearly six years ago, which you can see in the
photos and video accompanying this story.

When Thomas found the device on her vehicle back in 2005, she ripped it from
the underside of her fender, but quickly grew fearful the FBI would raid her
house if agents suspected shebd removed it. So she carried it in a duffel bag
in her trunk for a week, while she and her boyfriend considered what to do.

When her lawyer called a local U.S. attorney to inquire about the device, the
prosecutor acknowledged it belonged to the feds and said they wanted it back.
But Thomas refused to hand it over, and the FBI seemed to drop the matter.
Her attorney told Threat Level the government bbasically abandoned it.b

She provided it to Wired.com recently, after reading a story about Afifi
discovering a tracker on his car. She said she wanted to raise more awareness
about how the technology is being used for stealth surveillance.

GPS vehicle trackers, based on technology first used by the military for
navigation, have become a popular law-enforcement tool for tracking people.
Cruder than other forms of surveillance b they report only where a suspectbs
car goes, not who is in the car or what occupants do when they arrive at a
location b itbs nonetheless frequently used for supplementary surveillance.
Thatbs because in most jurisdictions, investigators donbt need court approval
to slap a tracking device on a driverbs car, and because the devices provide
a stealthier and more cost-effective approach to surveillance than a team of
cops trailing a suspect around the clock.

The devices, however, have become one of the most divisive Fourth Amendment
issues facing courts around the country. The 9th U.S. Circuit Court of
Appeals in California ruled last year that using a GPS tracker was no
different than physically trailing a suspect in public, and that such
surveillance was not protected by the Fourth Amendment, even if agents placed
the device on a suspectbs car while it was parked in his driveway.

But Judge Alex Kosinski, in the dissenting opinion, called the use of GPS
trackers without a court order bstraight out of George Orwellbs novel 1984b
and said they give government bthe power to track the movements of every one
of us, every day of our lives.b

A federal appeals court in Washington, D.C., agreed with him when it ruled in
a different case last year that collecting data from a GPS device planted on
the Jeep of drug suspect Antoine Jones amounted to a search, and therefore
required a warrant. Prosecutors argued that the device only collected the
same information anyone on a public street could glean from following the
suspect. But Judge Douglas Ginsburg wrote in his ruling that the persistent,
nonstop surveillance afforded by a GPS tracker was much different from
physically tracking a suspect on a single trip.

bUnlike onebs movements during a single journey, the whole of onebs movement
over the course of a month is not actually exposed to the public because the
likelihood anyone will observe all those movements is effectively nil,b he
wrote. Whatbs more, the bulk of data gleaned by such a device over time could
help deduce a lot about a person, such as whether he associated with
political groups, was a heavy drinker or weekly churchgoer, was an unfaithful
husband or an outpatient receiving regular medical treatment.

The Obama administration called the ruling bvague and unworkable,b and filed
a writ in April asking the U.S. Supreme Court to review the case. A decision
on whether the high court will hear the case is pending.

Itbs not known how many people are tracked with GPS devices every year, but
the devices donbt always go undetected. An elderly Arab-American in the San
Francisco Bay Area reportedly discovered a vehicle tracker on his car in
2009, while he attended a free auto-repair workshop and let the instructor
demonstrate an oil change on his vehicle.

Then last year, Yasir Afifi, a 20-year-old Arab-American college student in
California photos of it on Reddit.com, and readers identified it as a GPS
tracker, the FBI showed up at Afifibs apartment demanding he return the
device. Hebs since filed a lawsuit (.pdf) over the tracking.

Although the Justice Department has said the devices are used by
investigators bwith great frequency,b neither the department nor local law
enforcement agencies are required to compile or disclose statistics about
their use in the way the Justice Department is required to report annually to
Congress on the use of national security letters issued to ISPs and other
businesses for customer records.

Kathy Thomas doesnbt know if the FBI obtained a warrant to place the tracker
on her car. But she said authorities never charged her with any crime. Threat
Level could find no federal case filed against her.

Her FBI file, which she obtained under a Freedom of Information Act request,
makes it clear the surveillance was part of a nationwide investigation of
activists connected to Earth First, the Earth Liberation Front and the Animal
Liberation Front b groups the FBI considered bleft-wing anarchistsb whose
members sometimes advocated criminal activity to further their aims.

Thomas, who provided Threat Level with only a handful of the 800 redacted
pages she received in her request, says she organized activities with Earth
First and participated in animal rights activities, but never belonged to the
two other groups. Instead, she was a member of Food Not Bombs.

The FBI reports indicate agents likely turned to the GPS tracking device
after it became increasingly difficult to tail her physically.

Thomas had begun engaging in countersurveillance maneuvers, FBI agents
claimed in the documents, including speeding, running red lights, making
unsafe lane changes and weaving through congested traffic to evade them. A
July 2004 report describes how she drove one day into the cul-de-sac where
she lived and sped around to confront and photograph cars she believed were
tailing her. The report says Thomas was becoming bextremely
surveillance-conscious,b and that agents bwere made [recognized as agents] on
two separate occasions.b

Thomas says the surveillance was a daily occurrence for months. Then in April
2005 she confronted an agent who was following her on the freeway. She took
an exit ramp and stopped, and when he pulled up behind her, she got out of
her car to yell at him, shaking a glass Perrier bottle in her hand. She says
the agent laughed at her, and after that the surveillance stopped. Or so she
thought.

She found the GPS tracker on her car a few months later.