Justice Department 'Complies' With FOIA Request For GPS Tracking Memos; Hands ACLU 111 Fully Redacted Pages

from the the-answer-is-none;-none-more-black dept

Just recently, we learned that the EFF had been handed what appeared to be several pages of severe formatting errors and faulty Morse code in response to its FOIA request for the secret interpretation of the FISA spying law. There were also the “sobering findings” faux-released by the NSA, which left in only enough unredacted wording to open speculation on these “sobering findings,” as well as to publicly lament the surely misguided public debate on the super-secret agency’s actions. Now, the news comes to us that the FBI has handed the ACLU a stack of papers that would make any toner supplier very happy.

The ACLU filed a FOIA request last July in hopes of receiving some insight into the FBI’s tracking of US citizens via GPS devices. Two months later, it filed a lawsuit against the FBI, forcing the issue. At long last, the FBI has responded… with 111 pages of black ink.

Two key memos outlining the Justice Department’s views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions. 

The word “see” is obviously some sort of joke because there’s absolutely nothing to “see” here, unless you consider To, From and Subject fields to be the “smoking gun.” Oh, and this one paragraph that leads into 56 straight pages of black ink.

In United States v. Jones, 132 S. Ct. 945 (2012), the Supreme Court affirmed the suppression of location data generated by a GPS tracking device surreptitiously affixed to a car without court authorization and monitored continuously over a 28-day period.

Yep, that’s the power of the FOIA. All the black ink (or blank pages) you could possibly want, delivered months after they’re requested. The redactions on these two documents obviously goes far beyond simply protecting sensitive information that might jeopardize ongoing investigations. This is nothing more than the DOJ covering up unconstitutional practices.

The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking — possibly for months at a time — or whether the government will first get a warrant. This is yet another example of secret surveillance policies — like the Justice Department’s secret opinions about the Patriot Act’s Section 215 — that simply should not exist in a democratic society.

The ACLU is asking the court to order the DOJ to release these memos in full. The Fourth Amendment’s reasonable expectation of privacy is undermined by these secret memos, which limit knowledge of law enforcement tracking efforts solely to the executive branch.

The implications of these withheld documents go even further than discussing GPS tracking. FBI General Counsel Andrew Weissman’s explanation of the second memo (“Guidance Regarding the Application of United States v. Jones to Additional Investigative Techniques”) leaves the door open for tracking via other technology.

[The] second memoranda [sic] is going to be about guidance about what this means for other types of techniques, beyond GPS, because there’s no reason to think that this is going to just end with GPS and some of that is going to be very much a judgment call.

It’s already common knowledge that law enforcement agencies are using cell phone tracking. As the ACLU points out, wireless carriers already receive 1.5 million requests for data every year, most of which is used for location tracking. Additional technology, such as drones or license plate readers, make endless surveillance a logistic reality, and all without a warrant.

A fully-redacted document doesn’t seem to indicate that the FBI is operating within the constraints of United States v. Jones. It signals the very opposite and provides us with another example of how government agencies, when faced with constitutional limitations, are more than happy to simply “interpret” their way around them — and keep these interpretations out of public view, perhaps indefinitely. It’s extremely hypocritical for the FBI and DOJ to sit in a position of law enforcement when they clearly believe abiding by the law is optional.
 

 

 

 

 

 

 

Filed Under: , , , ,
Companies: aclu, eff

Rate this comment as insightful
Rate this comment as funny
You have rated this comment as insightful
You have rated this comment as funny
Flag this comment as abusive/trolling/spam
You have flagged this comment
The first word has already been claimed
The last word has already been claimed
Insightful Lightbulb icon Funny Laughing icon Abusive/trolling/spam Flag icon Insightful badge Lightbulb icon Funny badge Laughing icon Comments icon

Comments on “Justice Department 'Complies' With FOIA Request For GPS Tracking Memos; Hands ACLU 111 Fully Redacted Pages”

Subscribe: RSS Leave a comment
64 Comments
Anonymous Coward says:

Re: Someone's laughing

I’ve worked in the offices of various large and small contractors for various branches of the federal government, including the FBI and the military. The staff at each location was sometimes surprisingly mixed, politically, but a couple offices, especially those requiring security clearance, were rather lopsided.

Once, a button-down manager made no secret of his irritation at having to “waste so much time” fulfilling FOIA requests. Then, when he thought I wasn’t around, he and others in the office were dishing out snide remarks about “liberals”. As soon as they realized I could overhear them, they started whispering and cackling to themselves about the college town I live in.

Sending out 99%-redacted documents to the ACLU and EFF is surely regarded as a big hilarious joke.

Anonymous Coward says:

Re: Someone's laughing

You know damn well, someone involved with fulfilling this FOIA request was laughing their ass off while they blacked these out.

I’m sure it’s a huge game for them: “Just how much can we redact and get away with it?”

While there are probably some people working FOIA that think that way, it’s a rarity.

FOIA processors are trained to understand the intricacies of the FOIA law, the structure of their organization, and the administrative tasks involved in processing FOIA requests (i.e., response letters, redaction, etc.). They can tell how to apply the exemptions, but they don’t have familiarity with what portions of a record may be sensitive, particularly when it comes to classified documents. As such, they get to deal with “Subject Matter Experts.”

This can lead to many wonderful exchanges:

FOIA: We need you to review this for release.
SME: Can’t release. FOUO means it can’t be FOIA’d.
FOIA: No, FOUO means there might be FOIA exemptions.
(Weeks pass with no response to any further communication)
FOIA: Hello? Are you sitll working on this?
SME: Can you resend?

FOIA: We need this to be reviewed for declassification.
SME: It’s all classified. Can’t release.
FOIA: [“There may be Communists in the ruling party of the USSR”/”Gunshot wounds can kill people”/(some other benign piece of information)] is (still) classified?
SME: The document’s marked classified, and there’s classified information. Can’t release.
FOIA: This is a declassification review. We need to determine what specific lines or paragraphs are actually classified, and declassify everyhting that can be declassified.
SME: Fine. Here. (Provided document is almost entirely blacked out.)

And so on.

And if a SME says certain information isn’t releasable, the FOIA processor has two options: elevate the issue to be discussed between attorneys; or do your best to present a legally defensible argument justifying the SME’s intransigence.

So no laughter. You have the FOIA guy redacting information that (probably) shouldn’t be redacted due to a decision from someone who’s “more important,” thinking all the time “we’re so going to get sued for this,” and the SME is annoyed that this obnoxious pencil-neck from the FOIA office has been wasting his time and taking his attention away from his “real” work.

The SMEs aren’t pure evil or arrogant or any of that, really. I’m sure most people here would be annoyed by some legalistic hair-splitter demanding you spend time dealing with something you don’t understand while emails pile up and your managers get on your back for failing to meet delivrables.

So no Snidely Whiplash running the FOIA office. Like just about everything else, it’s just highly dysfunctional.

Anonymous Coward says:

apart from how ridiculous this is and how ‘on purpose’ this was done in this way, it makes e even more concerned about the way ALL the law enforcement agencies behave and what they are up to. they are obviously guilty to the extreme, with plenty of what seems to be ‘contra US citizen interest’ practices going on. that cant be good! it also makes the reason why it was so important to renew FISA without any amendments reasonably obvious too

Anonymous Coward says:

Re: Re:

Yep.

There are conspiracy theorists who came to this conclusion years ago – and started planning for revolution. Maybe those Doomsday Planners aren’t crazy after all.

At what point will the government simply declare martial law when they realize they can no longer hide their intentions?

Anonymous Coward says:

Re: Re: Re:2 Re:

At what point people will realize it doesn’t matter?

I mean, make the laws outside congress and just elect the dumb asses that will make it happen doesn’t matter if they are republican or democrats.

Anyone you put there will be a dumbass, they will all have to rely on government institutions to say what is cool and what is not and they act accordingly, this is the big real problem, anybody you put there will be absorbed by that system.

Change the system, do the laws outside congress and have a real public discussion about it, the day the public do that is the day things will change and I don’t even hope it is all for the better I am old enough to know that people will eventually screw it up somehow at some point, but better to be an inclusive fuck up than one only by a few screw ups.

weneedhelp (profile) says:

Re: Re: Re:

“There are conspiracy theorists who came to this conclusion years ago” – Being a self proclaimed conspiracy theorist; Doesn’t this now go beyond theory and become fact?

The MSM has the public brainwashed and used conspiracy theorist as a stigma to immediately discredit anything anyone has to say that goes against the norm, most Amerikans will never realize until it is too late, and when they do and revolt, then Marshall law will be declared and another civil war will ensue.

I will, after this day, never call the American PPL sheeple again, but use the more appropriate term lemmings.

I try really hard not to bring 911 stuff up here, but what we see happening has been accelerated due to the events of 911, and it was absolutely abused as a catalyst to the end-goal of the neoconservative agenda.

Pentagon – Black boxes – altimeter. Upon take off the altimeter gets adjusted for the barometric pressure of the day. The NTSB data from the black boxes clearly shows the adjustment after take off but upon landing/crashing no such adjustment is made. So what does that mean? Well about a 400 ft difference is all. How do we interpret that? Well that has kept me up nights and I don’t have an answer for you. One thing I do know is either the NTSB data was made up or manipulated. Either conclusion brings up a myriad of additional questions to which some ppl’s mind just cant handle. Is this a conspiracy theory? Or just someone like myself, and many others noticing a discrepancy in the official documents provided by the NTSB and questioning how that could possibly be?

Alright ill get off my tinfoil soapbox now, take off my tinfoil hat and stick to the articles at hand.
-End conspiracy laden rant.

Bergman (profile) says:

Re: Ignorance

The idea already exists after a fashion. The legal doctrine is commonly called ‘void for vagueness’.

Basically, the idea is that a court can strike down a law that is so badly written or obfuscated that it is utterly incomprehensible to a non-lawyer or is so vague that it can be stretched to criminalize perfectly lawful behavior (such as exercise of a constitutional right).

Matthew Cline (profile) says:

Re: Ignorance

While I don’t at all agree with what the government is doing here, the secret interpretations of law is about laws saying what the government can or can’t do, so this doesn’t involve any secret interpretations of laws that you or I could break. Of course, there could be secret interpretations of laws that you or I could break, but that would be the subject of a different FOIA request.

Anonymous Coward says:

Re: Re: hahahahhahaha poor trees

Years ago, I remember international comments on an article about the DMCA were rife with: “Why do we care about this? This is a U.S. problem”, and at the time, I remember distinctly telling them to watch out – as our government was planning to export our copyright viewpoints.

I don’t see too many international individuals brushing off U.S. government’s bullshit these days – I think most of them have learned to not trust their own governments to protect them from ours by now.

velox (profile) says:

Fascinating…
The two memoranda above which have a little bit visible were issued by the DOJ Chief, Criminal Appellate Division, Patty Merkamp Stemler.
Couldn’t this possibly be the same Patty Merkamp Stemler who was part of the Federal prosecution team held in contempt of court for failing to turn over information to the judge after being explicitly ordered to do so? That misconduct resulted in the collapse of the criminal case against Senator Ted Stevens.
It looks like the episode didn’t teach DOJ attorneys anything. Maybe the lesson we should have learned is that the members of the executive branch are now so powerful that they can flout rules, ignore law and nothing happens. After all, none of the DOJ attorneys involved in the Stevens case suffered any career damage.
Ms. Merkamp Stemler even got promoted.

maclypse (profile) says:

I got a question: how long is the US citizens going to tolerate secret laws, secret procedures, secret interpretations of laws, and secret applications of all of the above – before the americans actually vote for “none of the above” and find a third party?

The libertarians is starting to look pretty damn good about now, aren’t they? At least they are neither democrats nor republicans and it’ll send a message.

Emptyfull says:

The panoptican

The panoptican is coming; indeed it is already mostly here.

The eye of God will be granted to the corporate-military elite. They will, inevitably, then show us how short-sighted they are by using that information to their short-term advantage. But they will know everything they want to know about us, whenever they care enough to look.

More than anything else, I think this is why Dick Cheney and Co. framed the War on Terror like they did. Since OWS folks were quickly labled “terrorist” threats, we can see the suppressive potential of this system for elite interests.

CaptainVic says:

Your “smart phone ” lays a pop corn trail no matter where you go and yes the gov can look at it anytime and know exactly where your “stashes ” are to the foot not nine foot but foot ! They can see if you are dbl parked by where your driver seat is and they use google earth with is painstakingly upgraded all the time ,. 2 ) no smart phone ? How about they have a agent drop off powder that can adhere to your shoes or car handle and you can’t get it off ,. It has to scrubbed with scolding water ! They just deliver it next to your truck ,. It can be tracked anywhere on the planet ( even Osama knew this ten years ago he had the Ap get their clothes off and the thugs scrubbed ! If you all did research and read you would not need to ask its all out their ! What’s blacked is tactics of delivery ,. U turn off your phone it still pings ! And they can listen to you and it takes pics being off,. The Apple guy died and took a big secret with him it was that all people in t

Add Your Comment

Your email address will not be published.

Have a Techdirt Account? Sign in now. Want one? Register here

Comment Options:

Make this the or (get credits or sign in to see balance) what's this?

What's this?

Techdirt community members with Techdirt Credits can spotlight a comment as either the "First Word" or "Last Word" on a particular comment thread. Credits can be purchased at the Techdirt Insider Shop »

Follow Techdirt

Techdirt Daily Newsletter

Techdirt Deals
Techdirt Insider Discord
The latest chatter on the Techdirt Insider Discord channel...
Loading...