from the government-states-black-toner-shortage-as-primary-motivator dept

Tim Cushing
Tech Dirt
March 19, 2014

Court ruled DoJ does not need to disclose secret memos providing guidance to federal prosecutors and investigators regarding use of GPS devices and other location tracking technologies..
Artist rendition of Navstar-2F satellite of the Global Positioning System
Back in January 2013, the ACLU managed to pry loose two secret memos on the FBI’s GPS tracking from the DOJ with a FOIA request. The only problem was that the request didn’t actually free much information. The responsive documents consisted of a few scattered paragraphs … and 111 pages of black ink.

The ACLU objected to this mockery of the words “freedom” and “information,” noting that secret interpretations of existing laws is exactly the sort of thing the Freedom of Information Act was designed to discourage, not protect. So, the ACLU sued the government in hopes of being given something a little less redacted.

That legal battle is now over. And no additional information will be freed.

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 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.”

The documents apparently contain the DOJ’s arguments for warrantless GPS tracking, but the American public won’t be allowed to find out anything about the government’s justification. Instead, the court has decided to take a hands-off approach and “allow” defendants to “discover” these arguments as they’re presented in court. Or not, if the government decides its arguments are too super-sensitive to be released and pushes to present these justifications under seal.

As the ACLU notes, it’s only because the FBI’s general counsel spoke of these two documents during a panel discussion at the University of San Francisco that anyone even knows the secret memos exist and what they’re comprised of. Until these arguments are tested in court, the government is free to determine how much privacy Americans are entitled to in regards to GPS location tracking. Fortunately, there are a few legislators exploring other options.

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…” 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.

On a related note, the FBI has filed a motion for summary judgement in its legal battle over NGI (Next Generation Identification) documents requested by an EFF FOIA request. The agency is trying to keep more privacy-related information out of the public’s hands, including more details on its facial recognition program and biometric database. The arguments deployed are largely familiar (release of more info would allow criminals/terrorists to circumvent the new technology), but the end result (if the motion is granted) will be the same — more secrecy for the government and less privacy for millions of Americans.

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