Hexbyte – Tech News – Ars Technica |
Tough cookies —
Top HSI official makes assertion after judge already ruled against this legal position.
A top Homeland Security Investigations official has told a federal court that it remains the agency’s policy that officers can install a GPS tracking device on cars entering the United States “without a warrant or individualized suspicion” for up to 48 hours.
There is no such time limit, HSI Assistant Director Matthew C. Allen also told the court, for putting such trackers on “airplane, commercial vehicles, and semi-tractor trailers, which has a significantly reduced expectation of privacy in the location of their vehicles.”
Such an assertion comes over a month after a federal judge recently told the Department of Justice that such a practice—at least in one drug-trafficking case—is unconstitutional. His decision is based on a landmark 2012 Supreme Court ruling involving GPS tracking, known as Jones.
Prosecutors had claimed that installing such a tracker was valid under the “border doctrine” exception to the Fourth Amendment, which finds that limited, warrantless searches at the border are allowed. US District Judge Jesus G. Bernal disagreed in an August 24, 2018 ruling.
Allen continued, saying that HSI believes that its policy is “consistent” with both the Jones decision and a case from 2004 case known as Flores-Montano. In that instance, the Supreme Court ruled that there is a “diminished” expectation of privacy at the border.
Legal experts find this newly disclosed HSI policy to be troubling.
“It is hard to square with the [Supreme] Court’s decision in Jones,” wrote Michael Price, an attorney with the National Association of Criminal Defense Lawyers, in an email to Ars.
“For starters, it ignores the fact that physical trespass was the basis for the Supreme Court’s holding in Jones—the act of placing a tracker on a vehicle is itself a search, regardless of how long police track it.”
Similarly, law professor Brian Owsley of the University of North Texas, who formerly served as a federal magistrate judge along the border in southern Texas, agreed in an email to Ars:
If HSI wants to argue that it can engage in warrantless GPS tracking of vehicles, that is within its prerogatives… However, Jones does not support a 48-hour window within the border. Instead, Jones establishes that the government needs a warrant signed by a neutral magistrate judge based on probable cause consistent with the Fourth Amendment. Moreover, Congress has established that a warrant is necessary for the installation of a mobile tracking device, which included GPS devices. In 18 U.S.C. 3117, Congress does not discuss any exception for border searches. Indeed, once a device is put on a vehicle, it likely will leave the border area, which undercuts the government’s position.