Tech Law

FBI’s Controversial Tracking Device No MacGyver Special

Every now and then — or possibly a great deal more often — the FBI will plant a car-tracking device on someone’s automobile to track their movements.

How do we know this? Occasionally, these devices are found by the persons being monitored. Some incidents have found their way into the court system. And some have made their way into the media’s hands, quite literally. Wired magazine and tech site have gotten hold of one such gadget and promptly conducted a teardown of the technology.

The device appears to be jury-rigged with items that can be easily purchased at a store like Best Buy. There is a GPS unit, which receives the car’s position, an RF transmitter, which relays the car’s movements, a magnetic mounting rack, and a power source — a case of D-cell batteries providing roughly the same energy supply as an iPad battery.

FBI Comes Knocking

The pedestrian makeup of the device is particularly interesting given that the FBI has, in a few publicized cases, demanded the return of its car-tracking technology, citing its sensitive and proprietary nature.

That reportedly was the experience of California college student Yasir Afifi, who found one of these devices on his car, published a picture of it on, and within forty-eight hours was confronted by the FBI requiring him to hand it over. Afifi has filed one of the court cases on this subject.

The FBI did not respond to TechNewsWorld’s request to comment for this story.

Headed for the Supreme Court?

Afifi alleges that the FBI violated his privacy rights and that he was targeted because of his ethnic background. His chances of legal success, though, are minimal — at least if the majority of circuit court decisions on this matter should stand.

However, a Washington, D.C., Circuit Court decision that split with other circuit courts could give Afifi legal ground on which to pin his claims — if, that is, the Supreme Court agrees to hear the case.

1980s-Era Decision

First, some background: It is legal for the FBI and other law enforcement agencies to place these devices on cars without warrants. This stems from a case the Supreme Court heard in the 1980s in which a drug shipment was traced via tracker from origin to destination with the goal by law enforcement of discovering who would be on the receiving end.

The Supreme Court held that because the drugs traveled on the public highways, there was no reasonable expectation for privacy, said Fenwick & West partner Tyler Newby, a former trial attorney for the Computer Crime & Intellectual Property Section of the DoJ’s Criminal Division.

Recent circuit court decisions involving the placement of GPS-tracking devices on automobiles have followed the precedent set in that case, he told TechNewsWorld.

The Mosaic Theory

However, in Maynard & U.S. v. Jones, a federal appeals court in Washington, D.C. ruled that placing a tracking device on the suspect’s car and tracking his movements for more than a month was a violation of the Fourth Amendment.

That ruling essentially established the mosaic theory of GPS tracking, according to Newby. “It said that while short-term surveillance of a person with a tracker may not be subject to the Fourth Amendment, letting a beacon run for a period of a month or two allows the authorities to gather much more information about this person than just his movements.”

It is a novel theory, Newby said. “It will be interesting to see if the Supreme Court takes it up and if so, what it decides.”

So far, no other court has adopted it, and courts in the 7th and 8th circuits have upheld the use of GPS tracking devices.

“I think the reason why the D.C. court broke from this was the discomfort among judges allowing technology as a substitute for law enforcement,” suggested Newby.

The Obama administration has called the rules “vague and unworkable” and is asking the Supreme Court to review the case. Its decision on whether it will is pending. Until then, these devices are legal to use by enforcement agencies, Newby said — except on a long-term basis in the District.

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