Police Downloading Your Data off Your Phone After Pulling You Over -- A Nightmare Reality

This article first appeared on TruthDig.

President Barack Obama is actually siding with police who want to use GPS devices to track you without a warrant. It always disturbed me when on "Star Trek" the captain asked the ship's computer where a crew member was and was told the person's exact location. Even civilians such as the ship's physician and the empathy counselor were not immune from these inquiries, the answers to which could after all sometimes have been embarrassing. Is America heading toward being one big star ship, where government officials can casually inquire at will into our whereabouts and private doings?

Among the many elements of the Obama administration that have disappointed civil libertarians is its interest in spying on Americans. The Bush administration had instituted massive warrantless wiretapping and gathering of telephone records, with the complicity of most telecom corporations. Those who care about the Bill of Rights had hoped that Eric Holder's Department of Justice would take a stand for the Fourth Amendment, which should be on the endangered species list along with the golden tree frog and the St. Helena dragonet.

The administration is appealing a Washington, D.C., federal appeals court ruling that threw out the case that law enforcement had built against a suspected cocaine distributor because the officers attached a global positioning satellite tracking device to his automobile without a warrant and then followed his movements for a whole month. That they tracked the suspect for so long without bothering to involve a judge was one basis for the ruling.

Supporters of warrantless surveillance of this sort argue that a person's movements in public are not protected by the Fourth Amendment. But GPS tracking is very precise and can follow a car everywhere--onto farms or estates and into enclosed garages on private property. If there is evidence that a crime is being committed in, say, a garage, then a warrant should be obtained from a judge. In the absence of such evidence it is unconstitutional for the government to monitor the precise location of a piece of private property being driven on or parked on private property.

It should be remembered that it is perfectly possible for the police to make a mistake or act maliciously and to monitor someone who is innocent. The ACLU charges that these practices are increasingly common. If police and other security personnel are allowed to engage in domestic surveillance of this sort without a court warrant, they can start following large numbers of innocent people and learn details of their private lives. Just this year, Tacoma, Wash., police engaged in unconstitutional surveillance of anti-war activists, using an employee at a military base, which is even more troubling. Blanket permission for law enforcement to conduct warrantless GPS tracking of activists could reveal their private peccadilloes, which in turn could be used to blackmail them.

Another egregious case is that of college student Yasir Afifi, who found an FBI tracking device on his automobile during an oil change. Afifi, from a mixed American and Egyptian heritage, has no known associations with radicals, but his father had been active in the local Muslim community until his death last year and the family sends remittances to relatives in Egypt, a pattern of behavior that may have triggered the surveillance. Disturbingly, the federal Ninth District Court of Appeals found that the FBI had a right to put the device on Afifi's car as it sat in his driveway. This ruling violates the principle of "curtilage," which holds that the area immediately around a person's house is protected from unreasonable search by the Fourth Amendment. In a fiery dissent, Judge Alex Kozinski complained that his colleagues' decision gives "the government the power to track the movements of every one of us, every day of our lives." It is not known whether the FBI, who monitored Afifi for three to six months, ever obtained a court warrant or, if so, how many months it covered.