Finding an FBI Tracker Won’t Support Civil Suit

     WASHINGTON (CN) – A federal judge threw out claims by a California man who became a media sensation after he found a government GPS tracker in his car.
     Yasir Afifi says he was due for an oil change in October 2010 when he discovered the GPS device. Based on feedback he received after uploading photos of the device onto the Internet, Afifi determined that it was government issued.
     FBI agents descended on Afifi’s apartment that day, and two unmarked vehicles followed Afifi when he went out, his amended complaint alleges. When the agents pulled him over, they allegedly admitted that the bureau had been tracking Afifi’s movements. Afifi says he turned over the tracker as these agents inquired as to whether he was a threat to national security and if he had traveled to Yemen.
     The encounter allegedly ended with Kanaan informing Afifi that the bureau did not consider him a security threat and he returned the GPS device to the agents.
     Wired and other news outlets reported on the case.
     Afifi subsequently sued several agents, along with the U.S. attorney general and the director of the FBI.
     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.
     “Congress has set out a binding legal balance between the sometimes competing interests of protecting First Amendment activity and protecting national security,” Howell wrote. “The records of an individual’s First Amendment activities may not be kept by a government agency except when ‘pertinent to and within the scope of an authorized law enforcement activity.’ As discussed above, the records of the plaintiff fall within the protections afforded by the statutory scheme.”
     Afifi had also challenged the investigation of him as arbitrary under the Administrative Procedure Act, but Howell found that on this point the plaintiff lacked standing because the claim for declaratory or injunctive relief requires a showing that the plaintiff “is suffering an ongoing injury or faces an immediate threat of [future] injury.”

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