D.C. Circuit Sides with ACLU in Warrantless Tracking Case
The Department of Justice must disclose case information related to the government’s use of cellphone tracking in criminal prosecutions, said the U.S. Court of Appeals for the District of Columbia Tuesday. The three-judge panel reaffirmed a district court’s decision that the government should publish information about warrantless cellphone location surveillance. Such disclosures would “inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool,” wrote Circuit Judge Merrick Garland, in the court opinion.
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The decision stems from a 2008 lawsuit where the American Civil Liberties Union sued Justice to disclose the information under the Freedom of Information Act (FOIA). The lower court decided Justice should release documentation related to cases where individuals were ultimately convicted or entered public guilty pleas, but did not compel Justice to disclose information about individuals who were acquitted or whose cases were dismissed or sealed.
The appeals court dismissed Justice’s invocation of FOIA exemptions 6 and 7(c), saying the release of such information would not constitute an unwarranted invasion of personal privacy because much of it is already publicly available and accessible on judicial websites. The appeals court also said disclosure of prosecutions stemming from warrantless cellphone tracking “would shed light on government conduct.”
The court said it would vacate its decision for cases where there are “too many factual uncertainties,” and remand the case for further development of the record. Such cases may have involved disclosures of surveillance targets who have yet to be prosecuted. “It is one thing to disclose the identities of targets who were eventually convicted in public proceedings; but the privacy calculus becomes increasingly more significant if disclosure extends to those who were acquitted, or to those whose activities were never the focus of public attention, such as uncharged investigative subjects, witnesses, or bystanders,” Garland wrote.