Passive GPS tracking is a known — and, as smart phones begin to dominate the cellular market, much more common — feature of mobile technology. The issue with the Apple devices is that they don’t just dump the data after a certain amount of time, like Android phones do, and that they restore the internal tracking database across backups and even migrate it over to new devices when, for example, a user upgrades to a new iPhone.

Privacy advocates who have voiced similar discomfort with Google and Facebook’s information collection practices say that the information could conceivably be sold to the highest bidder to bolster targeted corporate advertising. But last week’s developments could have larger resonance and far more immediate impact in the ongoing push to allow law enforcement to use GPS tracking information as evidence in federal court.

There is no uniform federal policy on whether search warrants are required for police and other law enforcement officers to track suspects using GPS devices. In August, the Ninth Circuit Court of Appeals, which has jurisdiction over the entire West Coast, plus Hawaii, Alaska, Montana, Idaho and Nevada, ruled in agreement with a lower court that police can legally attach GPS monitoring devices to suspects’ cars without needing a warrant. The court claimed that there is no reasonable expectation of privacy when one travels on public roads and that just following someone’s actions as they do so is fair game.

The very same month, however, the Court of Appeals for the D.C. Circuit fell on precisely the opposite side of the issue. It ruled that the FBI and D.C. police couldn’t use information from a tracking device as evidence in a drug conviction for a nightclub owner and suspected cocaine kingpin.

The Obama administration has now stepped in to fill in the gap that has arisen within the federal courts over the issue. Solicitor General Neal Katyal has submitted a petition to the Supreme Court asking it to review the D.C. Circuit Court’s decision. And the administration is proving to be no friend to privacy advocates: Katyal wants the Supreme Court to overturn the D.C. ruling and bring it in line with what was decided in California.

The Washington Post’s Robert Barnes reports:

The decisions come as judges increasingly are asked to unravel the connection between modern technology and constitutional protections of privacy and against unreasonable searches. GPS devices in cell phones and cars contain a wealth of information about a person’s movements, and a smartphone can provide law enforcement with vast amounts of information.

“This case is really going to confront the court with the problem of adopting the Fourth Amendment to a new information age,” said Daniel Prywes, a Washington lawyer who wrote a brief in the Jones case for the American Civil Liberties Union and the Electronic Frontier Foundation.

“I think it’s the seminal privacy case of the 21st century.”

It’s unknown if the Supreme Court will follow up on the administration’s request and hear the case. There are dueling precedents at play that cloud any theorizing over how the court would rule if it elects to take up the issue. In 1983, the Burger court ruled in United States vs. Knotts that the installation of a beeper-enabled tracking device on a vat of chemicals didn’t constitute a privacy violation, while a year later, the same court ruled in United States vs. Karo that installing such a tracking device on a can of ether became a privacy violation as soon as the can left public roads and ended up on private property (the conviction in that case was upheld anyway).

Both rulings, however, asserted the legality of the use of tracking devices to monitor evidence that could otherwise be obtained by simply watching suspects go about their business. If the Supreme Court interprets precedent along the lines desired by the Obama administration, it could very well pave the way to unimpeded, warrantless use of smart phones’ tracking information by law enforcement. The future of the government’s take on privacy rights in the information age hinges on what the Supreme Court does next, if it decides to take the case.

It also means the DOJ’s Executive Office for Immigration Review is finally following through on its promise to fill vacancies in the courts, where one in six positions stood vacant as of March. The agency promised to fill the 48 vacancies on immigration courts by the end of the year. They’re not there yet, but Chief Immigration Judge Brian M. O’Leary said the recent addition put the courts on their way to being fully staffed.

“These new immigration judges bring the judge corps of our 59 immigration courts to 262, and we expect to further enhance the corps by additional immigration judges before the end of the calendar year,” he said in a press release.

Vacancies mean longer wait times for hearings and more time in detention centers — plus shorter hearings in a system that already is considered assembly-line justice. Immigration judges had about 70 minutes per case, the shortest time on record from 1998 to the present, according to a March study from Syracuse University’s Transactional Records Access Clearinghouse. In some cases, this means considering multiple cases at the same time, including mass hearings of up to 80 people.

Immigrant rights advocates argue the backlogs make real justice next to impossible, adding to a number of other complaints about the way immigrants are treated in the civil deportation process.

Some rights groups might have one problem with the new judges hired by the DOJ. A look at their biographies shows that a majority have experience in immigration law specifically, but at least 15 of the 23 worked for the Immigration and Customs Enforcement at the Department of Homeland Security, its predecessor Immigration and Naturalization Services or the Executive Office for Immigration Review at the Justice Department.

Immigration attorneys argue that taking judges from DHS adds to the tension of the process. “They’re your archenemies for fifteen years and now they’re the judge,” Glenn Fogle, an Atlanta immigration attorney, told The Nation.

Rep. Lamar Smith (R-Texas), who is expected to run the House Judiciary Committee, has spoken out against these cities, claiming they violate a 1996 law that expanded the government’s reach on illegal immigration. After the Justice Department decided to sue Arizona for taking on immigration enforcement with SB 1070, conservatives argued there should be a similar crackdown on sanctuary cities.

“For the Justice Department to suggest that they won’t take action against those who passively violate the law — who fail to comply with the law — is absurd,” Smith, the chief author of the 1996 immigration law, told The Washington Times in July. “Will they ignore individuals who fail to pay taxes? Will they ignore banking laws that require disclosure of transactions over $10,000? Of course not.”

The 1996 law, the Immigration Control and Financial Responsibility Act, requires local governments to cooperate with immigration enforcement authorities. Most lawmakers in sanctuary cities — San Francisco being one notable exception — deny that the label applies to their city’s policies because they do not prevent immigration authorities from policing immigration in their areas. They claim their policies are meant to enhance public safety by making undocumented immigrants feel comfortable about reporting crime to the police or seeking help from health officials.

As immigration enforcement programs expand, the “sanctuary cities” title is beginning to mean less and less. The Secure Communities program, which shares fingerprint data taken after arrests with federal immigration enforcement, is mandatory even in cities such as San Francisco that oppose turning the data over to Immigration and Customs Enforcement. The 287 (g) program, which was established under the 1996 law, has also led to expanded cooperation between local law enforcement and immigration officials as police are trained and deputized to perform immigration enforcement duties in some areas.

Still, it’s possible Smith will attempt a bill explicitly banning sanctuary-style policies. Ira Mehlman, a spokesman for the pro-enforcement Federation for American Immigration Reform, told TWI that his organization hopes to see the Republicans in the House take a tough stand against sanctuary policies.

Such a measure could conceivably gain traction among Democrats, given the fact that “sanctuary” was used as a dirty word in several campaigns this year. The Obama administration’s eagerness to spread Secure Communities nationwide and continuation of the 287 (g) program seem to indicate at least some support for local police assistance with immigration enforcement. And although Obama and the Justice Department came down hard on Arizona for SB 1070, Obama’s arguments against a “patchwork of policies” could be — and have been — used by others against sanctuary cities.

GOP House members might also try to pass legislation specifically giving states the right to crack down on immigration, said Mark Krikorian, executive director of the Center for Immigration Studies, a group that advocates stricter enforcement. “They might propose a bill to specifically assert states’ authority to participate in immigration enforcement,” he said. “I could see that passing the House relatively easily.”

That type of law, though, is far less likely to gain support from Democrats. Krikorian said he was almost certain such a bill would be vetoed by Obama, if it were able to get past Senate at all.

Officials wouldn’t speculate on how many firearms they did not stop from reaching the cartels. But the inspector indicated a number of problems in how the U.S. Bureau of Alcohol, Tobacco and Firearms runs its programs to prevent firearms from the United States from entering Mexico:

The report indicated there are major holes in the system, including a lack of ATF resources to fulfill Mexican requests for help.

“For example, ATF has been unable to provide key training and support requested by the government of Mexico,” the report found.

U.S. officials stationed in Mexico told investigators there is a lack of coordination among various Mexican law enforcement agencies, and ATF has no single counterpart that it can interact with in coordinating firearms trafficking investigations.

But the inspector general also found a lack of coordination and information sharing among U.S. agencies. The ATF and Immigration and Customs Enforcement have a particularly difficult time coordinating despite a formal memorandum of understanding between the two agencies, the report said.

These problems aren’t new: U.S. agents in Mexico have reported a lack of progress in the country on prosecuting for weapons trafficking, and say too few Mexican agents know how to use software the United States government shared with Mexico to trace weapons.

The Mexican government claims that 90 percent of firearms in the country came from the United States, where they are far easier to obtain than in Mexico. United States officials dispute that number, but both governments agree that curbing the flow of weapons into Mexico could weaken powerful drug cartels that have wreaked havoc on the country.

The Justice Department report recommends that U.S. firearms officials upgrade intelligence-sharing capabilities and make various improvements to the way they chase down investigative leads. In addition, the report suggested that Mexico be integrated into Southwest Border Initiatives — the collaborative border security efforts of officials in Arizona, California, New Mexico and Texas. The Bureau of Alcohol, Tobacco and Firearms reportedly concurred with these recommendations.

Today’s meeting in San Francisco proceeded much like a meeting in Arlington, Va., last week: An ICE official acknowledged misinformation surrounding the opt-out process for Secure Communities, but ultimately said counties cannot prevent fingerprints collected for criminal background checks from being shared with ICE for immigration enforcement.

The program runs up against San Francisco’s sanctuary ordinance, which forbids cooperation with ICE unless mandated by the courts or federal or state law. Sharing fingerprints, then, will still be mandatory, but San Francisco may be able to enact other changes, such as no longer holding illegal immigrants who are run through the Secure Communities system but not charged with a crime, Eileen Hirst, a spokeswoman from the San Francisco Sheriff’s office, said after the meeting.

Secure Communities director David Venturella reportedly said in the meeting that local law enforcement is not required to respond to requests by the agency to hold suspected illegal immigrants. These holds, called detainers, have been criticized for imposing costs on local police and netting too many non-criminal illegal immigrants who would otherwise be released.

Although Sheriff Michael Hennessy — a vocal critic of Secure Communities — has not yet reached a decision, Hirst said he could decide his department will no longer honor all of the detainers issued by ICE, meaning San Francisco would again let some known undocumented immigrants go free.

Still, the word from San Francisco officials that Secure Communities is mandatory is a blow to rights groups that say ICE deceived communities into thinking sharing fingerprints was optional. Advocacy groups seem unlikely to drop the issue. After Arlington’s county manager released a memo reporting the county could not opt out of Secure Communities after her Nov. 5 meeting with ICE, immigrant rights activists said they would continue to push for more information on the opt-out process.

Lucero Beebe-Giudice, a spokeswoman for Tenants and Workers United, told TWI yesterday that opponents of the program are awaiting the results of a Freedom of Information Act request to ICE on policy agreements, program communications and technology records. Immigrant rights groups hope to get information on whether it would be technologically possible to give fingerprints to the FBI for background checks without forwarding them to ICE — which would then allow communities like Arlington and San Francisco to make a new push to be removed from the program.

Santa Clara, Calif., the third community that requested an opt-out meeting, is holding a meeting on Secure Communities with ICE this afternoon.

Our sister site, The Florida Independent, reports that Republicans in Florida will now have a veto-proof majority in both the state House and Senate, plus a vocal supporter of tough immigration laws in the form of Governor-elect Rick Scott (R):

Scott has allies in the legislature. State Rep. Willliam Snyder, R-Stuart, already announced a drafted immigration bill that mimics Arizona’s S.B. 1070 and would obligate local law enforcement agencies to inquire about a person’s immigration status during a routine stop. [...]

In July, state Rep. Kevin Ambler, R-Tampa, and state Sen. Paula Dockery, R-Lakeland, also proposed legislation modeled after Arizona’s S.B. 1070.

State Sen. Mike Bennett, R-Bradenton, told The Florida Independent in July that he would introduce legislation based on the Arizona law during the 2011 session, and state Rep Mike Horner, R-Kissimmee, also supported an Arizona-type law in Florida during his campaign.

“I expect there will be an effort to pass an S.B. 1070-type law and several anti-immigrant bills,” says Jonathan Fried, the director of We Count, a community and workers’ organization located in Homestead. “I would hope sensible members of the Republican Party understand what this would do to the state and their party. In the long term, they would be the anti-Latino party.” [...]

With the small number of Democrats in Tallahassee, Fried says there is little real opposition to an Arizona-style law. “I hope African-American and Latino legislators will step up and oppose this bill,” Fried says.

Republican Nathan Deal’s victory in the Georgia governor’s race puts the state in a similarly likely position to pass anti-illegal immigration legislation next year. Georgia was ranked by a pro-immigration group among the four most likely states to pass copycat SB 1070 laws. In two of the others — Oklahoma, where Mary Fallin (R) won for governor, and South Carolina, where Nikki Haley (R) will take over — Republican candidates for governor won on Tuesday. (The fourth, Mississippi, is led by Republican Gov. Haley Barbour.)

In Texas, which was deemed “maybe” likely to pass anti-illegal immigration laws, Republican Gov. Rick Perry won re-election and the GOP won a two-thirds majority in the state House. Rep. Warren Chisum, a conservative Republican, plans to challenge Republican House Speaker Joe Straus for the top position. Chisum told the Houston Chronicle he wants to look at SB 1070-style legislation for Texas:

“We might look at the Arizona law, see how it could fit into Texas law,” he said.

He said the state has to do something since the federal government is not securing the border.

“We have as many undocumented people here in the state as anybody and we need to figure out how to get them documented, those that are working and doing fine and abiding by the law,” Chisum said. “We need a way to have that work force here. … But it needs to be legal, documented, know where they are, paying taxes and abiding by the law.”

New Mexico might also be an interesting case for immigration law, considering its history of immigrant-friendly legislation. Illegal immigrants can receive driver’s licenses and in-state tuition in the state, but Republican Governor-elect Susana Martinez has said she wants to put an end to “sanctuary” policies for undocumented immigrants in the state.

The judges will hear arguments from the Department of Justice, which filed a suit against the law in July, and the state, with 30 minutes for each side. If you want to watch, the hearing will be broadcast on CSPAN at 9 a.m. Pacific time, noon Eastern.

At stake is whether the law will continue to operate in its limited form, where it has yet to make much impact on policing immigration in Arizona. Law enforcement officials and human rights groups said they haven’t heard of additional arrests or stops under the law, although the provisions feared to provoke racial profiling have been blocked.

A number of groups, politicians and governments have come to the support of both Arizona and the Department of Justice, with amicus briefs filed on both sides to argue the law should or shouldn’t be allowed to go into effect. On Arizona’s side are a number of state attorneys general — particularly Republicans running for governor — and Maricopa County Sheriff Joe Arpaio. The Mexican government and a number of human rights organizations support the Justice Department’s attempt to block the law.

No matter which way the judges rule, it’s unlikely the battle over SB 1070 will stop there. Arizona officials, including bill author state Rep. Russell Pearce (R), have promised to take the fight to the Supreme Court, if necessary. Plus, there are a few other pending lawsuits over SB 1070: Federal Judge Susan Bolton has yet to rule on Saldago v. Brewer and has not heard or ruled on National Coalition of Latino Clergy and Christian Leaders v. State of Arizona or LULAC v. Arizona.

The most interesting detail: One of the judges, Carlos Bea, was nearly deported in the early 1950s after making a mistake in the visa process to re-entry the country after time abroad. Score one for the Department of Justice’s case against SB 1070, which is partially based on complaints that the law is anti-immigrant.

It gets more complicated from there. Bea is viewed as a conservative on the court and was appointed by George W. Bush in 2003. One of the other judges, John Noonan, was also appointed by a Republican, while Richard Paez was selected by Bill Clinton. Despite the judges’ party affiliations, observers have speculated the panel could be tough on Arizona for perceived racial profiling created by SB 1070 because two of the judges have Hispanic backgrounds. Paez’s parents were born in Mexico, while Bea was born in Spain but lived in Cuba before moving to the United States.

Noonan, the Republican non-Latino on the panel, has a ruled in favor of immigrants seeking asylum and tends to side with the federal government over states, Ira Ellman, a law professor at Arizona State University, told the Tribune.

In total, the two stories list roughly three factors that could help Arizona’s case (two Republicans on the court, one who usually votes conservative) and six factors that could help the Justice Department (two Latinos on the court, including one who was nearly deported, one Democrat, plus two judges who often side with the federal government).

It’s still hard to say how the panel will rule, but lawyers seem to think the Department of Justice has a good chance of prevailing with the panel as it did with the federal judge in the first challenge. Gerstein writes that lawyers familiar with the court told him the panel seemed more likely to favor the Obama administration and civil rights groups than Arizona.

Arpaio became famous for his purposefully harsh treatment of illegal immigrants and his push for round up the undocumented in Maricopa County, Ariz., through controversial sweeps of immigrant-heavy neighborhoods. He likes to call himself “America’s toughest sheriff,” but others have compared him to Hitler and accused him of “treating people like circus animals.” Arpaio has a few tactics for doing this, including the clothing he issues to the detainees in his “Tent City”: black-and-white striped uniforms and pink underwear.

This type of treatment has earned him numerous condemnations from human rights groups. He also faces a Department of Justice investigation into alleged civil rights violations by his office and a lawsuit to hand over related documents. Arpaio’s office was accused in late September of misusing up to $80 million in taxpayer funds.

Meanwhile, Arpaio has upped his national profile by endorsing Tea Party candidates and appearing in campaign events. Although he said he plans to stay sheriff, there has been some talk of seeking higher offices — even the presidency. After Arpaio visited New Hampshire in September, his spokesman acknowledged, “People just don’t go to New Hampshire if they are not interested in these things.”

According to the representatives crafting the legislation, that’s exactly the point:

“If that bill passes, we will be sued immediately. That’s the purpose of the bill,” said Texas state Rep. Leo Berman. “The ACLU, La Raza, the Justice Department — someone will sue us for the bill.”

The next step in his desired outcome is a legal victory. “That lawsuit will go all the way to the U.S. Supreme Court, where some judge is going to read the background and say there are no Supreme Court rulings affirming the 14th Amendment’s current interpretation,” he said.

Elise Foley has the story.