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OOIDA to Supreme Court: impact of electronic surveillance far from ‘minimal’

By Jami Jones, senior editor

Big Brother is fighting to be able to track your every move without your knowledge or a court’s approval. And the Supreme Court heard arguments in a case in early November that will ultimately decide if that’s OK or not.

The United States Supreme Court heard the case of the United States of America v. Antoine Jones on Nov. 8, 2004.

The case started in 2004.

Jones owned and managed the Levels nightclub with a partner in Washington, DC. An FBI-Metropolitan Police Department Safe Streets Task Force began investigating the two for narcotics violations. The investigation culminated in searches and arrests on Oct. 24, 2005.

During the course of the investigation, police tracked Jones’ movements in his Jeep Grand Cherokee with a GPS device they placed on the vehicle. The evidence obtained from that tracking was challenged because the police did not have a valid warrant. It had expired the day before the device was placed on the vehicle.

However, the lower court allowed the evidence, and subsequently Jones was convicted. The conviction was appealed to the U.S. Court of Appeals for the DC Circuit where it was overturned.

That might or might not have been the end of the road if other circuit courts had not ruled differently on similar cases. That lack of consistency among the courts, and a patchwork of laws regarding GPS surveillance, prompted the U.S. Department of Justice to take the case to the Supreme Court to plead their case.

While the case revolves around a drug conviction, the case is ultimately about constitutional rights – rights of all U.S. citizens, including truck drivers.

The government’s position is that warrantless use of GPS is not a violation of the Fourth Amendment and should be allowed. And those are the issues the U.S. Supreme Court has been asked to settle.

Because of the far-reaching implications of this case on the trucking industry, the Owner-Operator Independent Drivers Association filed a brief in the case as an “amicus curiae,” which is Latin for “friend of the court.”

The brief is a way to provide the court with additional information and legal opinions relevant to a case the court will hear.

In the case of OOIDA, the Association did not want the court to rule with a very narrow view of who warrantless surveillance would affect if they allow it. The ruling could ultimately result in the violation of Fourth Amendment rights and in the invasion of privacy of millions of people the court may not have considered without the filing of the brief – the American truckers.

“OOIDA files this amicus curiae brief because of its serious concern that the government’s indiscriminate, relentless and intrusive use of warrantless surveillance devices such as EOBRs would violate the constitutional rights of drivers,” the Association’s brief states.

The Association’s leadership felt compelled to become involved in the case because the case “will have a direct and immediate impact on warrantless electronic surveillance activities currently being advocated or conducted by federal government agencies in a variety of regulatory settings,” according to the brief.

The government’s case insists that allowing warrantless GPS surveillance would have a minimal impact on the public at large.

Not so, says OOIDA’s brief, prepared by The Cullen Law Firm in Washington, DC.

The Association challenges the government’s position that “no evidence exists” of widespread suspicionless GPS monitoring and that the potential for such monitoring is “remote,” by pointing to attempts by the Federal Motor Carrier Safety Administration to enact an electronic on-board recorder regulation.

“The specter of such surveillance is both disturbingly ‘practical’ and demonstrably imminent,” OOIDA’s brief states.

The EOBR regulation, OOIDA  states, would allow FMCSA to engage in widespread warrantless GPS surveillance of millions of American citizens. In fact, the brief points out the agency would be monitoring the movements of 4 million drivers operating for 500,000 motor carriers using 3.6 million vehicles, 24 hours a day, seven days a week.

This type of widespread enforcement on U.S. citizens was envisioned by the Supreme Court some time ago, but it was not in a position to rule on speculation. That’s clear in the decision in the 1983 case of United States v. Knotts.

The court ruled “if such dragnet type law enforcement practices … should eventually occur, there will be time enough then to determine whether different constitutional principles may be applicable.”

“Regrettably, that day has now arrived,” OOIDA’s brief states.

“There are serious questions as to whether there are any constitutional protections against the government’s use of such ‘dragnet type law enforcement practices’ against massive groups of citizens such as the 4 million truck drivers who stand to be swept up in FMCSA’s dragnet,” the brief states.

The Supreme Court’s session runs from the first of October until June or possibly into July of the following year. Generally speaking, although not a set schedule, the court’s opinions are issued in the same term they are heard. So a decision on the Jones case may not happen until May, June or even possibly July of 2012. In some instances, cases are held from one term to the next before the court issues an opinion.

“We are hoping the Supreme Court will make the right decision and provide the proper clarity in order to protect constitutional rights,” said OOIDA President Jim Johnston.

“It’s important to ensure that constitutional protections extend to this new electronic age we’re going into.”

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