Court Says FBI's Secret GPS Tracking Memos Can Stay Secret
from the government-states-black-toner-shortage-as-primary-motivator dept
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.
Filed Under: doj, fbi, foia, gps, secrecy, tracking, transparency
Companies: aclu
Comments on “Court Says FBI's Secret GPS Tracking Memos Can Stay Secret”
“claimed in court that it should not have to turn them over because they contain attorney work-product”
Couldn’t that be claimed for almost anything a lawyer presents in court other than basic facts (eg “the lights are on in the courtroom”) ?
How soon before some lawyer claims that a rebuttal from the opposing lawyer is a copyright violation and theft of intellectual property ?
As for the main point, yeah we know. Everything is secret. We got the memo.
One more kick in the dead body of democracy. What can’t be revealed can’t be scrutinized, questioned, audited.
….And just like everything else from this administration… They mock the constitution and our rights but we, the citizens, pay for it when we break their (secret) rules/law.
Re: Re:
Except in this case they’re the ones breaking the law, and their secret interpretation lets them get away with it.
funny how that doesn't work both ways...
when those scumbags are shredding our constitution, spying on us all, doing their dirty tricks on dissidents, enacting secret laws and interpretations, and otherwise fucking people up for NO GOOD REASON, they don’t have to ‘show cause’, explain shit, or ‘justify’ what they do, OR PROVE THAT PEOPLE ARE KEPT SAFE BY THIS BULLSHIT…
but we mere citizens are expected to ‘prove’ harm from secret laws and interpretations WE DON’T EVEN KNOW ABOUT, NOR WHAT THEY CONTAIN…
um, ain’t that totally bass-ackwards ? ? ?
Someone's a poor student of history
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.?
Yeah, anyone who’s been paying even the slightest attention knows that should evidence gathered from such methods ever be used in court directly, rather than brought in indirectly via parallel reconstruction, the FBI will, again claim that they can’t say a word about how they got it(and therefor have to defend the legality of the collection), because Terrorists!, and National Security!, and the judge(s), like always, will just bend over and accept that argument, because hey, this judge bought the idea that the FBI doesn’t need to explain why their actions are legal, why wouldn’t future judges do the same?
Judges like this are a complete and utter disgrace to the very concept of ‘justice’, and make the entire system look even more corrupt than it already is by their actions.
Over classification is a real threat to democracy. If GPS evidence is used against a defendant in court, that evidence should be presented to the defense for examination.
Otherwise, it should be dismissed if it’s too sensitive to hold up to public scrutiny.
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