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.
The Department’s written responses to questions are even worse. At the same hearing, Senator Franken introduced into the record a letter from DOJ regarding the general use of location tracking. This was in response to a letter the senator sent last month to DOJ (as we discussed here) seeking very basic information about location tracking and cell phones, such as how often location was requested and under what standard. The DOJ’s response says, “the use of a GPS device in Jones most closely resembles obtaining prospective cell phone GPS information from the provider, and the Department continues to recommend using a warrant to obtain that information.”
First, DOJ fails to mention that they are currently arguing in court that GPS tracking does not require a warrant. Second, the letter strongly implies that warrants are being sought in those cases. But in fact the Department has no way of knowing if that is true because while DOJ provides guidance, it doesn’t actually bind federal prosecutors. As we learned from another FOIA, federal prosecutors in at least two offices (including now Governor Chris Christie of New Jersey) have previously ignored DOJ guidance and secured precise cell phone location information on less than a probable cause standard.
But worst of all is the DOJ’s response to demands for basic information on how many of these orders and warrants are being issued:
The Department does not maintain records for ordinary criminal investigations of the total number of requests for location information or the total number of requests with which carriers complied. The Department also does not comprehensively track cost information from wireless carriers.
So even though we know from our Freedom of Information Act request that location tracking is common practice, there are absolutely no records kept on either how often it’s done or how much it costs.
In sum, we have a very common and invasive law enforcement practice that a unanimous Supreme Court decided raises serious constitutional implications. Yet the Department of Justice is offering contradictory and misleading statements about the standard for employing it and has no records on how it is used.
All of this confusion is some of the clearest evidence yet of why we need Congress to craft a legislative solution. Fortunately there is already a good one—the GPS Act, bipartisan legislation that requires a warrant based on probable cause for any location tracking. Congress should make speedy passage a priority.
Support the GPS Act here.