Is the FBI attaching GPS devices to cars, boats and planes and tracking them without a warrant? Even in the wake of the Supreme Court’s January decision in United States v. Jones, holding that attaching a GPS device to a car is covered by the Fourth Amendment’s prohibition on unreasonable searches and seizures, we don’t know for certain. That’s why today we filed a Freedom of Information Act request for two memos the FBI has prepared setting out its guidance on the Jones decision.
In Jones, the Supreme Court held that the Fourth Amendment applies when the government attaches a GPS to a car and gathers information on the car’s movements. However, it did not resolve whether GPS tracking is a search that requires going to a judge to get a warrant and demonstrating the existence of probable cause, or whether a lesser standard, such as reasonable suspicion without judicial supervision, might be adequate. (In a brief we and the ACLU of Eastern Missouri filed last week, we explained why the probable cause standard is the required one.)
It’s safe to say that the FBI isn’t exactly a fan of the Supreme Court’s decision in Jones, not only because it brings this surveillance technique within the protections of the Fourth Amendment (which former FBI general counsel Valerie Caproni argued against during an appearance last fall), but also because of what it views as the lack of clarity regarding the scope of the decision. According to FBI general counsel Andrew Weissmann, the Supreme Court justices “did not wrestle with the problems their decision creates.” In his view, “the real problem from a law enforcement perspective is that the clarity that people look for . . . doesn’t come from the decision naturally.”
Mr. Weissman explained that the FBI has prepared two guidance memos on Jones. He said the first one focuses exclusively on the use of GPS, and suggested that it states views on such questions as whether Jones applies to other forms of transportation like airplanes and boats, and whether it applies at the international border. The second memorandum, Mr. Weissman explained, sets forth the FBI’s guidance on how Jones applies to other evidence-gathering techniques, beyond GPS.
These are the memos the ACLU has asked for today. While the FBI’s guidance regarding Jones is significant because of how it will impact the FBI’s own use of GPS tracking devices, it is also likely to be influential beyond the FBI itself. The FBI is the nation’s leading law enforcement agency and it collaborates regularly with other local, state and federal law enforcement agencies. Its guidance is therefore likely to carry great weight within the law enforcement community, and to have a significant impact on the privacy rights of Americans. We think the American public ought to know how its law enforcement agencies are interpreting the law in this area.