Federal Court Rules DOJ’s Location Tracking Memos Can Stay Secret

Yesterday, a federal district court ruled that the Justice Department does not need to disclose two secret memos providing guidance to federal prosecutors and investigators regarding the use of GPS devices and other location tracking technologies. The government had previously released the documents in response to the ACLU’s Freedom of Information Act lawsuit, but their contents were almost entirely censored. (You can view the redacted documents, in all their glory, here and here.)

The memos were written in the wake of the Supreme Court’s landmark decision in U.S. v. Jones, which held that the government’s use of a GPS tracker to monitor a vehicle’s movements is subject to the Fourth Amendment. While the Supreme Court’s decision was a major victory for Americans’ privacy rights, it also raised numerous unanswered questions about the proper use of GPS tracking and other surveillance technologies going forward. The court, for example, did not decide whether the government must obtain a warrant to install and monitor GPS devices. And it did not explain how the Fourth Amendment applies to other location tracking technologies.

The Justice Department drafted the memos to address those open questions, but it claimed in court that it should not have to turn them over because they contain attorney work-product and sensitive law enforcement information. The district court disagreed in part, holding that government guidelines for the use of GPS tracking do not qualify as sensitive law enforcement information, because “Law enforcement’s use of GPS tracking is well known by the public.” But it concluded that the government may nevertheless keep the guidelines secret, on the ground that the results of DOJ’s reasoning “will be borne out in the courts.”

We certainly hope the district court is correct in predicting that the government’s surveillance policies will eventually see the light of day in an open judicial forum. But while we wait for the courts to weigh in, the political branches will be the ones who determine how much privacy we can expect in our movements over the course of weeks or months — movements that can reveal a surprisingly intimate picture of our personal and professional lives. That is why these memos are so important. And yet we know they exist only because FBI General Counsel Andrew Weissmann happened to mention them in a law school talk that ended up on YouTube (you can watch it here).

Fortunately, the district court does not get the last word on this issue. Senator Ron Wyden (D-OR) and Representative Jason Chaffetz (R-UT) have asked Attorney General Eric Holder to release the documents, reminding the attorney general that “there is no room in American democracy for secret interpretation of public law.” (You can read their letter here.) And the New York Times Editorial Board has called on the Justice Department to release the location tracking memos to the public of its own volition, so that we can have the public debate about government surveillance practices that the administration claims to welcome. And if you want to skip right over interpretations of the law and get behind a strong Congressional fix, you can support legislation mandating a warrant for all location tracking here.

We the People have a right to know what checks the executive branch has put in place to regulate law enforcement’s use of the powerful new surveillance tools at its disposal. We hope the Justice Department someday agrees.

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Anonymous

I think they act like arrogant fools. The end.

John Chasnoff

This was written so beautifully and presisely; I was captivated with this piece, even as Brian made his points. Sense and sensability.

from Richard, V...

I'm certainly aware of Big Brother and how he thinks about your Amendment rights, which cease to exist when he can say he was "calling you to serve your country" or some equally patriotic pap that sounds great and is in reality a smoke screen more than an answer.
This article only reinforces what I've thought since I returned from Vietnam. At times I wonder if I'm being hypersensitive in my instinctive reaction against our government, especially when questioning their motives for doing anything. Then I read an article like this and feel somewhat vindicated in my response rather than believing it to be reactionary hypersensitivity, like someone in the Army said of me when I hesitated to follow his orders.

Some lines in the poem by Lord Tennyson says it so well:

"Was there a man dismayed, not though the soldier knew, someone had blundered. Theirs not to make reply, theirs not to reason why, theirs but to do and die. Into the valley of death rode the 600 hundred...stormed at with shot and shell, boldly they rode and well; into the jaws of death, into the mouth of hell rode the 600...charging an Army while all the world wondered...Then they rode back but not - not - the 600...They that had fought so well, came back through the jaws of death, back from the mouth of hell all that was left of them, left of 600."

I'm not a big poetry lover, but every one of those lines come together to describe in overwhelmingly exact detail of what a war experience is like for many soldiers. Unfortunately, Vietnam was no Light Brigade and returning soldiers were more apt to be dishonored by society of the time than honoring them and calling what they did 'glory.'

You start to wonder if everything you perceive is being bent and twisted into your new reality of life when you return, which is forever changed after such an experience.
Then you see an article like this and feel glad to know it's not ONLY you, that other people are seeing through Big Brother's schemes to weave a tangled web of deceit they think will pass as truths.

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