This argument came up in the GPS tracker Supreme Court case.
The Supreme Court's decision effectively said that having to use people to tail suspects or whoever put a brake on the government. The GPS trackers removed that restriction. They proceeded to rule GPS trackers without a warrant as unconstitutional.
In the US, the SCOTUS has ruled differently: that attaching a GPS tracking device to a car constitutes a search under the Fourth Amendment and requires a warrant. See US v. Jones (2012) and Grady v. North Carolina (2015).
The funny thing in this case which the Govt LOST in a big way is that the Govt actually HAD a warrant. They failed to comply with it (Attaching the GPS after the date granted by the court and for longer than granted.)
Basically the Govt. tried to convince the court that their bungling did not matter because a "warrant" not needed to begin with as it was not a "search" as defined in the 4th amendment. The Supremes slapped the hell out of that argument and thus created a major ruling that now impacts all govt. actions on GPS. The irony is awesome.
If you're talking about United States v. Antoine Jones, the result the Court reached is not what you describe. The Court ruled that a warrant is required to install a GPS device on a car because the act of installing the device is a seizure (however brief). Unfortunately Kennedy hid behind this narrow ruling; no finding was made on the broader issues of the 4th Amendment and electronic surveillance.
That is not what the GPS tracker case said. Scalia wrote the majority opinion of the court, and that opinion was based on the physical intrusion necessary to install the GPS tracker. Physical intrusion into a protected space (your car is one of your "effects") has always been a search requiring a warrant.
The article indicates that court rulings have been mixed as to whether a warrant is required. I suspect the FBI doesn't want to force the issue, in case they lose.
If the tracking were completely legally sanctioned, I can't imagine that the trackee would have any claim to ownership over the device.
Based on reading (the beginning of) the decision, that appears to be incorrect.
From the first paragraph of the decision: "The warrant authorized installation in the District of Columbia and within 10 days, but agents installed the device on the 11th day and in Maryland. The Government then tracked the vehicle’s movements for 28 days."
And from the footnote on page 2: "1 In this litigation, the Government has conceded noncompliance with the warrant and has argued only that a warrant was not required"
So they got a warrant but messed up and failed to comply with its terms, and to try to preserve the conviction they argued that they didn't have to comply with the warrant.
Edit: Rereading it, andylei's main point is that police just need to get warrants and in order to still be able to use GPS tracking, and that's correct. Apologies for the nitpicking.
You don’t need a warrant to enter a home or similar property to effect an arrest when you are in hot pursuit of a subject who you have probable cause (in a situation not requiring a warrant) to arrest because, in that context, the entry is not a search.
I don’t see how that helps here, because the whole point of putting a GPS tracker on a car is to allow abandoning hot pursuit in favor of (what has been determined to be) a search.
These warrants should be called what they are, General Warrants. Something that was abused in our history and deemed to corrupting that they were banned in our constitution.
I do not see how strapping a set of GPS coordinates instead of a city block magically makes the warrany anything other than a General Warrant.
Yeah, most times the Third Party Doctrine comes up these days afaik is with location tracking services.
EG, technically cops don't need a warrant or subpoena to ask Google where you were on a particular day. Though, in practice, they often still get one because they know that it's kinda unfair and judicial or statutory protections are probably coming soon and they don't want to jeopardize the prosecution should the law change during the investigation.
For example, the January 6 insurrectionists are largely being caught through location data obtained under warrant from Google. Do they technically need the warrant? No. And if they were investigating, like, shoplifters, they probably wouldn't have bothered to get one. But they don't want to let thousands of insurrectionists off the hook in case this is the case where the courts decide to flip.
AFAIK, location tracking requires probable cause to get a warrant. So the "different treatment" is that the standards for evidence for location data warrants are on average higher.
I'm not trying to say anything about the way things should be, but rather to correct you when you falsely reassure people that this won't and can't be used this way.
Leaving aside the particulars of this case since all we've heard so far is what his lawyers are saying happened, the troubling issue here is that somehow attaching a GPS device is an action that does not require a warrant.
I can accept the argument that it doesn't gather information that couldn't be gathered by other warrantless activity such as following him with agents.
But it also MUST require that they entered the personal property of his car. You can't search a car without consent or a warrant, why can you enter it without either?
Whats really troubling here is in the future, the police could get a warrant to track a vehicle, take the tracker off themselves, then go back to the courts claiming there is probable cause the suspect stole the tracker and get the warrant to search for their tracker in the suspects home and parents home...of course searching for whatever it is they really wanted but had no right to search for.
I think erring on the side of needing warrants for law enforcement can help with some of the incidental vs targeted surveillance debate. Law enforcement driving past while on regular patrol and noticing something vs spending time and resources to launch a drone, fly a plane, or stake out a property for surveillance has a distinction that feels neat enough for a court to rule on.
Not exactly how this works though. If the tracker was attached with a legitimate warrant your “consent” is irrelevant. It sounds like the Indiana ruling was more about intent to steal and not some issue of ownership, which is a distinct difference.
The 'warrant' part is unrelated to the ownership issue of the tracking device. Even if it was used under unlawful circumstances, the FBI remains owner of the device. To take an extreme example, if I throw a brick through your window with a note attached to it 'this brick is owned by jimmy jones and I have no intention of relinquishing ownership', I remain owner of the brick. That I'm liable for the damage caused by it is self-evident. (the note is to preempt a digression into 'apparent abandonment of property' or whatever the exact wording it is in the appropriate jurisdiction)
'Ownership' of something, and 'committing a crime' with that something are orthogonal. Apart from some specifically designated by law items (drugs, weapons), committing a crime with something does not change its ownership status. I don't quite see the controversy here (that is, after one steps back and looks over the 'oh my god! big gubmint is spying on us!' knee-jerk reaction. Let's not forget the kid (from what I gathered...) was apparently connected to organized crime, even if only through blood).
You're both right. In the general case, FISA warrants are court orders sufficient to require a third party to disclose information in their possession. However, any given FISA warrant may not meet the requirements for a warrant that must pass muster under the 4th amendment. They are, however, sufficient for activity that does not require a warrant under the 4th amendment.
So the question is: what requires a warrant that meets the strictures of the 4th amendment? Not every kind of data gathering or information collecting activity requires a warrant.
A good hypothetical to think through is a Tesla car. Tesla has the capability to track you via GPS, though the functionality is apparently disabled on retail models. But say it was enabled, and Tesla collected and stored information about where you went to optimize your ownership experience. Do the police need a warrant to get that information?
On one hand, the police do require a warrant (meeting 4th amendment strictures) to put a GPS on your car (because it is a physical invasion of your private property). On the other hand, police don't need a warrant to ask your neighbors what they know about where you've been.
So: what do the police need to get your GPS information from Tesla? On one hand, you can say that the police shouldn't be able to do indirectly what they can't do directly, and say that they require a warrant meeting 4th amendment strictures to get that information from Tesla. On the other hand you can point to a crucial distinction: the police did not need to invade your physical property to put a GPS bug on you--you did that part yourself and voluntarily told Tesla exactly where you were going. If you had phoned Tesla, and told them exactly where you had went, and they wrote that down and stored it in a file, the police would not have required a 4th amendment warrant to get that data. Just a lesser court order in the event Tesla did not cooperate.
The Supreme Court's decision effectively said that having to use people to tail suspects or whoever put a brake on the government. The GPS trackers removed that restriction. They proceeded to rule GPS trackers without a warrant as unconstitutional.
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