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Appeal Brief in Warrantless Cell Phone Tracking FOIA Case Filed

Mariko Hirose,
Staff Attorney,
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September 13, 2010

On Friday, the ACLU, the ACLU of the National Capital Area, and the Electronic Frontier Foundation filed our opening brief in the U.S. Court of Appeals for the District of Columbia Circuit in the lawsuit to enforce our Freedom of Information Act (FOIA) requests regarding the government’s warrantless cell phone tracking practice.

Warrantless cell phone tracking is the practice of obtaining a person’s cell phone location data from carriers, in real-time/historically, without a warrant to aid in law enforcement investigations. We found out from a smattering of published cases in the district courts and from the documents released as a result of this FOIA request that prosecutors around the country are routinely accessing this location and movement information, including precise GPS data, by merely showing a court that the information sought is “relevant and material to an ongoing criminal investigation” — a standard much lower than the probable cause required for a warrant. We believe this violates federal surveillance laws and the Fourth Amendment (PDF).

We filed our FOIA requests on November 9, 2007, in order to learn more about the scope and effectiveness of this unlawful practice, which is shrouded in secrecy because most applications for cell phone tracking are sealed. Pursuant to our requests and the subsequent lawsuit to enforce them filed on July 1, 2008, the government produced some responsive documents, including template cell phone tracking applications and training materials, which are available here.

In March, the district court further ordered the government to disclose case names, case numbers, and court of all criminal prosecutions in which it engaged in warrantless cell phone tracking and the defendant was convicted. The remaining documents that we’ve seeking on appeal are: case names, case numbers, and court of all criminal prosecutions in which it engaged in warrantless cell phone tracking and the defendant was acquitted, the charges were dismissed, or the case remains under seal; and case names and numbers on applications for cell phone tracking. The government has invoked the privacy exemptions to the FOIA to withhold these documents.

This information will help us determine, among other things, what crimes people subjected to warrantless cell phone tracking are alleged to have committed; whether prosecutions brought against people who have been tracked are successful; whether defendants ever learned that they were tracked without a warrant; and how the government used the cell phone location information as evidence. The Freedom of Information Act exists to oblige the government to disclose precisely this type of information, so that the public can learn “what the Government is up to.”

Because the public interest in learning about the warrantless cell phone tracking practice outweighs people’s privacy interests in docket information (like case names and numbers) that are already publicly available, we hope that the court of appeals will agree with us and compel the government to release the information that we’re seeking.

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