American Civil Liberties Union

How is the Department of Justice using location tracking? If you were looking for an answer to this simple question, this was not the week. Instead, as Congress attempts to oversee this crucial privacy question, it is getting double talk and stonewalling.

Let’s start with the legal standard the Department is using. Earlier this week Senator Al Franken (D-MN) asked Attorney General Holder to clarify the Department’s position on location tracking. Specifically, he asked why, even though experts agree that the recent Supreme Court case US v. Jones stands for the proposition that law enforcement needs a warrant to place a GPS tracking device on a car, DOJ is arguing in another case for a lower, non-probable cause standard. (In an amicus, the ACLU argued that the Fourth Amendment requires that police obtain a warrant to engage in GPS monitoring.) The Attorney General replied that he wasn’t familiar with the case but agreed with Senator Franken that in interpreting Jones they were “likely to be dealing with a situation where we need a warrant.” This frustrating answer seems aimed at reassuring Congress that Americans’ constitutional rights are being protected while DOJ is arguing precisely the opposite in court.

Christopher Hitchens had many rare qualities – he was contrarian, original, devastatingly brilliant, skeptical of almost everything – and I take pride in the fact that he was once an ACLU client.  He was a plaintiff in our 2006 challenge to the Bush administration’s warrantless wiretapping program, a challenge that was sustained by the lower court but later dismissed on procedural grounds by a divided court of appeals.

In 2008, Congress enacted a statute that authorized the National Security Agency to carry out dragnet surveillance of Americans' international communications. Almost four years later, the statute — called the FISA Amendments Act — has yet to be reviewed by the courts, and, if the Obama administration has its way, the courts are unlikely ever to review it. In February, the administration asked the Supreme Court to overturn a court of appeals decision that would allow an ACLU challenge to the statute to go forward. Today we filed our brief in opposition, which asks the Supreme Court to let the appeals court's decision stand.