Privacy SOS

Young man who found FBI device on his car loses lawsuit

Remember the case of the young man who found a GPS tracker on his car, posted about it on the internet, and then received a visit from FBI agents, who demanded their tracker back? The young man, Yasir Afifi, sued the FBI and the Attorney General, citing Privacy Act and First and Fourth Amendment violations. This week a judge tossed his suit, finding for the government.

Courthouse News reports:

Though the FBI told the court that it has administratively closed its investigation into Afifi, it said that it continues to maintain records summarizing the data collected from the GPS device, "as well as records reflecting other information and actions taken concerning" Afifi.

Afifi claimed that the warrantless tracking of his movements violated his Fourth Amendment rights and that agents violated the Privacy Act by "maintaining records of his First Amendment activities."

He also claimed that the tracking "created an objective chill" on his First Amendment activities, but U.S. District Beryl Howell threw out the case Thursday.

Finding that the FBI agents are entitled to qualified immunity, Howell said that "neither the Fourth Amendment nor First Amendment rights he [Afifi] seeks to vindicate in this suit were clearly established at the time and in the place where the challenge conduct occurred."

The Privacy Act claim meanwhile fails because the records about Afifi's First Amendment represent "an authorized law enforcement activity," an exception to the law.

Qualified immunity provides law enforcement officials protections from civil suits in cases where their actions violate someone's constitutional rights, but not "clearly established law." In the digital age qualified immunity is particularly pernicious because it grants law enforcement agencies wide latitude to stretch the boundaries of the Fourth Amendment, as long as no court precedent or statute explicitly delineates how new surveillance technologies conform with the constitution. The police rely on what's called the 'good faith exception' to the Fourth Amendment to be able to use evidence obtained in a manner courts later find unconstitutional to put people in prison.

In Afifi's case, when the FBI was spying on him the Supreme Court hadn't yet ruled that police are required to obtain a warrant before attaching a GPS device to someone's car to track them, as they later did in US v. Jones. So according to this judge, he's out of luck, despite the fact that what the FBI did to him is now illegal.

© 2018 ACLU of Massachusetts.