Student Sues FBI Over GPS in His Car

Reason readers first learned of Yasir Afifi in our February issue's "Brickbats" section, where Charles Oliver wrote:

Yasir Afifi, an American-born student at California's Mission College, found an electronic device on his car, and a friend posted photos of it online. Shortly afterward, federal agents and local police called on Afifi, demanding that he return the GPS tracker to the FBI. They warned that if he did not comply, they would make things "much more difficult" for him.

Now A.P. is reporting he's suing over it:

Afifi's lawsuit, filed by the Council on American-Islamic Relations, claims the FBI violated his civil rights by putting the device on his car without a warrant. His lawyers say Afifi, who was born in the United States, was targeted because of his extensive ties to the Middle East — he travels there frequently, helps support two brothers who live in Egypt, and his father was a well-known Islamic-American community leader who died last year in Egypt.

FBI Spokesman Michael Kortan declined to discuss the lawsuit or the agency's investigation into Afifi, but said, "The FBI conducts investigations under well-established Department of Justice and FBI guidelines that determine what investigative steps or techniques are appropriate. Those guidelines also ensure the protection of civil and constitutional rights."…..

Judges have disagreed over whether search warrants should be required for GPS tracking. Afifi's lawyers say they are filing this lawsuit in hopes of a decision saying that any use of tracking devices without a warrant in the United States is unconstitutional.

The federal appeals court in the Washington circuit where Afifi's case was filed ruled in August that the collection of GPS data amounts to a government "search" that required a warrant. The Obama administration asked the court to change its ruling, calling the decision "vague and unworkable" and arguing that investigators will lose access to a tool they now use "with great frequency."

Jacob Sullum from last year on the legality of warrantless GPS surveillance.

Comments

[Jim]

Maybe they should just detain him as a "material witness" for a few weeks. Then they wouldn't need the GPS to know where he is.

[Ragnar]

Leave your toy on my car and it's gonna go on a long trip via UPS.

[Zeb]

I was trying to think of what the best thing to do would be if I ever found such a device on my car. I think this might be a winner.

[WTF]

Or, phone the local media and the local cops and tell them all you think that someone planted an 'explosive device' on your car, then stand back while the FBI tries to explain the shitstorm of attention.

[Aresen]

I like the way your evil mind works.

[TrickyVic]

Yeah, I like that one too.

[GroundTruth]

Having read the entire thread, this is definitely the best suggestion. Make the worms squirm!

[R C Koch]

Take it to a truck stop, and stick it on an 18 wheeler.

[GroundTruth]

What did the poor trucker ever do to your to deserve that!

[Zeb]

Either that or stick it to a cop car.

[Mo]

Send it C.O.D. to HQ.

[Aresen]

If the FBI claims it has the right to put a GPS on an American resident to track him, maybe Americans should demand that FBI agents carrying GPS units at all times and the records of their whereabouts be made subject to FOI requests.

[Geotpf]

Actually, there has been a Supreme Court decision stating that the government does, in fact, have the right to slap a GPS on a car. The legal reasoning is that it's not a search and it's not a seizure, and the cops certainly have the right to follow you wherever you go, so this just automates the process.

In fact, the Supreme Court decision was so broad (excessively so, IMHO) that they said the government had a right to go on to your property to install the device, unless the property was fenced and gated.

[Geotpf]

Actually, I might be mistaken. It might have been only an appeals court that decided this, not the Supremes. I believe I'm referring to the case in the bottom link in the article.

[Seamus]

A friend suggested that Afifi's response should have been "Return the secret tracking device in my car, officer? I have no idea what you're talking about. The government doesn't secretly track innocent citizens in the name of national security..."

I suggested, alternatively, that he could have said, "Of course, officer, as soon as you can provide me proof that this device is indeed your property. You did keep the receipt, didn't you?"

[Zeb]

That would work a lot better if his friend hadn't already posted photos of it online.

[Sheriff Beuford T Justice]

seamus fails to understand how physically punishing law enforcement GPS's can be.

[Vermont Gun Owner]

The Obama administration asked the court to change its ruling... arguing that investigators will lose access to a tool they now use "with great frequency."

Because that's how we should decide what's constitutional.

[Obama]

GPS tracking devices on cars? Shit, that's nothing! We do that shit all the time. You think that's something? Let me tell you about ... uh... I mean, uh...

[Matrix]

Well, if he didn't want to be a suspect, he should not have been born of middle eastern descent, and he should also not be a Muslim or have any contact with anyone in the Middle East. Only terrorists do those things.

[Fluffy]

If you bring your property on to my property and intentionally abandon it and leave it there for an extended period, when does it become my property?

Not a rhetorical question - I really don't know how that works.

[Zeb]

That's a good question. I would have thought that if someone attaches something to my property, I can do anything I want to with it. But it's probably more complicated than that (at least if it is the police doing it to you).

[Fluffy]

Isn't it curtilage or something?

I don't know. Somebody here's gotta know.

[Barely Suppressed Rage]

Another example - the utility company attaches a meter to the side of your house to measure the electricity you use, another to measure the nat gas you use, and another to measure the water you use.

Just because they're attached to your house doesn't mean they're "yours" or that you get to do whatever you want with them.

[Fluffy]

Right, but I have an ongoing business relationship with the utility where I have invited them to place that equipment there.

If they drove up one day and emptied a dump truck full of meters on to my front lawn, do I have to leave them there or can I landfill them? Or take them apart and build them into a Giant Killer Robot?

[Matrix]

Sweet! Build Liberty Prime! I know of a few members of congress that could use a good stepping on by a giant killer robot.

[Barely Suppressed Rage]

If they drove up one day and emptied a dump truck full of meters on to my front lawn, do I have to leave them there or can I landfill them?

Oh yeah, it seems to me that in that case, they've pretty clearly demonstrated an intent to abandon them - meaning you could do whatever the hell with them you want. You also would have a claim for trespass and damages - make them pay for the damage to your lawn when they drove the truck on it, and for the cost of having all those meters carted off and disposed of.

But in this case, it's pretty clear the FBI did NOT intend to abandon the device - they put it there purposely, for a reason, not to throw it away.

[wylie]

Of course, in that example, I have a voluntary agreement with the utility that says as much.

[wylie]

Gotta go put on my tinfoil. Anything to attenuate Fluffy's brainwaves and keep them from seeming like my own thoughts.

[Zeb]

I should have said "attaches something to my property without my permission". Obviously I can't just do anything I want to with meters, propane tanks, etc. that utilities placed there by my request. If the electric company comes and connects meters to my house without permission, I hope I can do what I want to with them.

[Barely Suppressed Rage]

If the electric company comes and connects meters to my house without permission, I hope I can do what I want to with them.

I seriously doubt it.

[TrickyVic]

"" If the electric company comes and connects meters to my house without permission, I hope I can do what I want to with them.""

If you were not a subscriber to the electric company's service, you might have something.

I suppose you could demand they come and remove it, but don't expect the lights to come on afterwards.

[Xenocles]

I don't consider myself a subscriber to the FBI's surveillance program. Additionally, if I called to demand they remove a tracking device I promise I wouldn't expect them to continue to be able to track me.

[Barely Suppressed Rage]

Weel, of course there's the diff between one private person leaving a piece of personal property on someone else's property versus the government intentionally planting a device there as part of a "potential criminal investigation".

But in general, if you find a piece of personal property, there are a couple categories it could fall into:

- Lost
- Misplaced
- Discarded

Which of these the property is considered to be depends on all of the facts and circumstances - including what the item actually is and where you found it.

E.g., you go out to your mailbox and find a wallet lying in the grass about a foot from the sidewalk. Pretty good idea that it's either lost or was stolen and tossed there - in which case it would be lost by the rightful owner.

A diff. example - you have a party, and a day later, you find a pink cellphone on the shelf next to your stereo, but you don't know whose it is. It almost certainly is misplaced, not lost. And certainly not discarded.

In the case of the GPS tracking device, it clearly was INTENTIONALLY placed there for the specific purpose of tracking you. It can't be said to be lost or misplaced and certainly not disposed.

So no, you don't get to keep it. They did not "abandon" it - they left it in that place purposefully, because that's how the device gives them the data they're looking for.

[Tulpa]

iirc, his original plan was to throw it into a lake. At what point are you allowed to destroy or discard property of others that was left in your property?

And frankly, he had no evidence that the GPS unit was from the government. It could have been placed there by criminals who wanted to steal something from his car.

[Tulpa]

I wonder what happens if I intentionally place an anti-drug-war magnet on a Pittsburgh police car. Will they respect my property?

[Zeb]

So then what do you suppose you are (or should be) legally allowed to do with a GPS device attached to your car? I would think that you can remove it and discard it if that suits you. I can't imagine that you have any obligation to leave it there if it's your car. But I really don't know and nothing would really surprise me.

[dunphy]

under my state's law if you find property (on your property or elsewhere) you are required to notify law enforcement. we give you a form and if the item is not determined to be stolen prop or a verifiable claim made as to it's being lost property etc. within a period of (iirc 120 days) then you get to keep it. with some exceptions.

it doesn't hold true for found firearms or motor vehicles, for instance.

generally speaking, finders keepers applies, but there is a notification requirement and waiting period.

[Barely Suppressed Rage]

Well it seems to me that what complicates the issue is that it's law enforcement property, put there purposely. You would not reasonably be entitled to just presume somebody accidently "lost" it, so that you can throw it away or do whatever you want with it. It clearly was inentionally placed there. Which takes it out of the realm of "lost", "misplaced" or "abandoned."

Of course, if it doesn't say "Property of FBI" on it or something, how are you to know who the hell stuck this little box of wires under your car?

I'd most likely carefully take it apart to figure out what it was. I certainly wouldn't have posted it on the interwebz.

By the way, as a general concept, it's not a matter of being "allowed" to do something with found property; it's whether you might be liable to compensate the rightful owner for its value or return it to him or her.

Although, again, the complicating factor is that in this case, it was federal gubmint property. So I'm betting there's some law saying it would be illegal to destroy or discard it.

As you can see, I really don't know - I'm just mulling over what I remember from first year Property class, which I actually found very interesting.

Except for when we spent the first three weeks of class chasing a damn fox and the prof never did explain what the fuck that was all about. I still don't remember if Pierson or Post had the right to the damn fox.

[GILMORE]

If you bring your property on to my property and intentionally abandon it and leave it there for an extended period, when does it become my property?

Not a rhetorical question - I really don't know how that works

I assume it falls under statutory adverse posession laws, but I'm not sure what the details for 'objects' would be versus property, where if something is neglected and you take care of it, title of ownership is legally transferred to whomever has maintained posession for a fixed amount of time... in the case of land, I think it's 7-10yrs, based on state...

but in the case of abandoned 'objects', I have no freakinig clue. As you point out below, a key factor is the degree of relationship the 'owner' maintains with the object; in your example, the gas meter...

Which reminds me of 2 things....1, I don't have to feel bad about all that music equipment that dudes left in my rehersal room over the years... its mine now, bitches! and 2... dude, I really need to go get those 500 records I left at my friends house before he takes title and sells them on Ebay...

[Barely Suppressed Rage]

Adverse possession applies to real property, not personal property.

The common law rule for adverse possession of real property was 20 years, provided various elements were met. Each state has its own variation. In VA, it's 15 years.

None of that applies here - adverse possession is about quieting title in real estate.

Personal property is subject to the law of "found property" - but in this case, as I'm musing above, the issue is that it's not just something that you found that somebody lost or forgot about or threw away. It's something the federal law enforcement agency intentionally put there.

I really can't imagine you would have any kind of legal, reasonable entitlement to treat it as yours. Not saying whether or not that should or should not be the result, but I can't imagine it isn't the way it would end up if you tried to argue "Well, gee, I just found it there..."

[Barely Suppressed Rage]

Judges have disagreed over whether search warrants should be required for GPS tracking.

Judges who believe the police need no warrant to plant a GPS tracking device on your car need to be beaten about the face and neck with the end of a garden hose until they reconsider their position.

[wylie]

arguing that investigators will lose access to a tool they now use "with great frequency."

Oh, well, if they use it a lot that's completely different....huh?

[Aresen]

Thanks for putting into words my reaction to that comment.

It is kind of like the Spanish Inquistion protesting being denied the use of the rack.

[wylie]

"But we've made such extensive use of those gas chambers."

-Hitler

[Tulpa]

The Obama administration asked the court to change its ruling, calling the decision "vague and unworkable" and arguing that investigators will lose access to a tool they now use "with great frequency."

Yes your Honor, it may be totally unconstitutional, but we do it a lot!

Though that seems to be the rationale even conservative justices use for upholding ridiculous Commerce Claus usurpations.

[R C Koch]

Commerce Claus

I think I have this year's Halloween costume.

[Tulpa]

Attaching a piece of equipment to private property without the owner's consent constitutes a seizure in my book. The courts seem to be hung up on the question of whether the device is attached while the vehicle is on public property (street) or on private property (driveway), which to my mind is irrelevant.

Certainly, the newer GPS monitoring devices which don't have a battery of their own, but rather draw power from the vehicle's electrical system, constitute seizure. It's kind of hard to argue that the government can actually use your property (the car battery) without your consent and without a warrant.

[CraigT]

"The Obama administration asked the court to change its ruling, calling the decision "vague and unworkable" and arguing that investigators will lose access to a tool they now use "with great frequency.""

By that argument we should bring back arresting the nearest black guy and beating a confession out of him.

[1600 Pennsylvania Ave]

Holy shit! I've got one right here.

Bonus: He's not at all innocent.

[anomdebus]

This is clearly a false flag operation to convince us they can't track us without using a device the size of a forearm.

[Barely Suppressed Rage]

Good point. If the cell phone company can tell where your phone is - a device small enough to easily slip into your shirt pocket - why do the feds need that big thing?

I suppose one issue is battery life - they'll want to track you for a couple weeks without having to put new batteries in the thing.

[Tulpa]

The new ones don't even require their own batteries...they're hooked into the car's electrical system.

[mick]

This kind of noob is why 9/11 happened. When someone discovers your surveilance you pretend nothing is happening and make them inflect paranoia. You do not send a f'ing letter SAYING WHAT YOU ARE DOING.