Oct 092010
 
 October 9, 2010  Featured News, Surveillance

When a young man from California recently  discovered a GPS tracking device under his car, he removed it and his friend inquired about it on Reddit.  A reader quickly identified it by make and model and noted that it was only sold to the military or FBI,  triggering a lively discussion about what to do if you ever find a device attached to your car.   A few days later,  the FBI turned up on the car owner’s doorstep to retrieve their surveillance device.  Whether the online discussion had anything to do with their appearance is uncertain,  however.  They may have just followed up when the device stopped transmitting.  But there they were, asking for their device back.

Kim Zetter broke the story of the encounter between  Yasir Afifi and the FBI.  Now Afifi has given an interview about the encounter to KTVU that you can watch on their site.  Somewhat surprisingly, he reports that the FBI actually called him six months ago to say they had received a tip that he was a threat to national security.  Afifi told Wired.com that he offered to  talk with the FBI if his lawyer approved but that  the FBI reportedly never returned his lawyer’s phone call.

In some ways, the story reads like an episode of Keystone Kops.   But the more serious issues, of course, are whether the FBI had any warrant to place that tracking device on Afifi’s car, how long they were tracking for him for, and whether such surveillance is likely to produce more homegrown terrorists as people get disgusted with a government that may be targeting innocent people for tracking because they’re Muslim or of Middle Eastern heritage.

Afifi is an American, born of an American mother.  If we went to war with France, would our government start surveilling people born of an American mother and a French father who are bilingual and who travel to France on business?

I do not know what “tip” the FBI claims to have received about Afifi, but to put it bluntly, not only do they look foolish in this case, they look suspiciously like they are abusing their power again.    Following quickly on the heels of a report critical of FBI abuses,  this case raises questions in my mind about the FBI’s ability to both recognize genuine threats to our security and their respect for civil liberties.

Under a recent Ninth Circuit ruling in the Pineda-Moreno case, the government does not need a warrant to place a GPS device on a vehicle.   That ruling,  which might apply to this case,  was issued in August, though.  If the FBI was tracking Afifi for months before the device was discovered, they would not have had the benefit of that ruling available to them.  So did they obtain a warrant at any point?  And if so, based on what probable cause?

This case needs to be pursued, although I suspect our government will claim that it cannot reveal anything for “national security” reasons.   The ACLU has indicated strong interest in using the case to challenge the Ninth Circuit ruling’s, and we’ll have to wait to see whether Afifi agrees to become a test case for them.  But the bottom line is this:  our own government must not be allowed to spy on its citizens or run roughshod over our civil liberties.  Judicial oversight by means of requiring a warrant is an essential Fourth Amendment protection.

That President Obama has failed to fulfill his mandate to have a functioning Privacy and Civil Liberties Oversight Board is symptomatic of an administration that merely pays lip service to protection of our privacy and civil liberties.

That this administration has paid lip service to transparency while hiding behind secrecy and claims of privilege in court is yet further evidence of this administration’s failure to provide the Change they campaigned on.

That the FBI seeks yet even more capability to spy on all our communications without a warrant should send chills down the spine of every American.

Image from FreeFoto.com under Creative Commons Attribution-Noncommercial-No Derivative Works 3.0 License

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