Muslim student Yasir Afifi and the Council on American-Islamic Relations (CAIR) filed a lawsuit against the FBI on March 2 after Afifi discovered a global positioning system (GPS) device on the undercarriage of his car. The suit, filed in the US District Court for the District of Columbia, alleges that Afifi’s rights were violated when FBI agents attempted to retrieve their tracking device, without explanation for why Afifi was being tracked. Afifi’s suit alleges civil rights and constitutional violations, specifically unlawful search under the Fourth Amendment, chilling and recording of First Amendment activities, and unlawful agency action:
Defendants’ unlawful intrusions into Mr. Afifi’s life—initiated as a result of his heritage, lawful associations, and disclosed political views—create an objective chill on Mr. Afifi’s First Amendment activities. In addition to the fear Mr. Afifi now feels when expressing his political views and maintaining certain lawful associations, Defendants’ actions have deterred others from associating with him, prospective employers most notably. The existence—even if now in the past—of an intensive surveillance operation by Defendants of Mr. Afifi communicate to persons and organizations that Mr. Afifi is at least suspect if not a threat to the physical security of those in my proximity.
Afifi’s family resides in Egypt, and he makes frequent trips and phone calls to the Middle East, which he described as fitting the FBI’s “profile.” FBI spokesperson Michael Kortan maintained that the FBI conducts all of its investigations under Department of Justice (DOJ) and FBI guidelines. Afifi seeks an injunction ending the FBI’s investigation of him, a declaratory judgment that his rights were violated, attorney’s fees and expenses of litigation, and damages for emotional distress.
The use of GPS technology and other surveillance devices by law enforcement agents has been a controversial issue in the US, with courts across the country coming to divergent conclusions. In December, the DC District Court declined to rehear en banc a bid by the DoJ to overturn a decision that prevents the government from using GPS technology to track suspects without a warrant. A Pennsylvania appeals court allowed use of evidence obtained with GPS technology in December. In September, a three-judge panel for the US Court of Appeals for the Third Circuit ruled that at times the government might need a warrant to obtain cell phone data to track a person’s location. Last year, the US Supreme Court unanimously held that, even if there is a reasonable expectation of privacy in work-issued electronic devices, an employer’s search of private text messages does not violate the Fourth Amendment so long as the search is not excessive and is pursuant to a legitimate work-related purpose.
From Jurist, March 3. Used with permission.