Skip to comments.Justice Department Refuses to Release GPS Tracking Memos
Posted on 01/17/2013 8:43:41 PM PST by Theoria
Two key memos outlining the Justice Departments 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 FBIs general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions. (You can see the heavily censored versions sent to the ACLU here and here, and our original FOIA request here.)
The Justice Departments unfortunate decision leaves Americans with no clear understanding of when we will be subjected to trackingpossibly for months at a timeor whether the government will first get a warrant. This is yet another example of secret surveillance policieslike the Justice Departments secret opinions about the Patriot Acts Section 215that simply should not exist in a democratic society. Privacy law needs to keep up with technology, but how can that happen if the government wont even tell us what its policies are?
The power of law enforcements discretion
The Supreme Court has weighed in on location tracking, but the government still has wide latitude to exploit new technologies and legal uncertainty. In February 2012, the Supreme Court issued a landmark decision in U.S. v. Jones, holding that the Fourth Amendment restricts the circumstances in which the government may attach a GPS device to a car and secretly track its movements. Although the Courts decision in Jones makes clear that the governments attachment and use of a GPS tracker on a car constitutes a search under the Fourth Amendment, it does not say whether that search requires a warrant from a judgea crucial protection because it forces agents to justify their actions to a neutral outsider. Furthermore, the courts opinion does not address other methods of location tracking, such as cell phone tracking, drones, or license plate readers.
Courts are often slow to extend constitutional protections to new technologies. The telephone was invented in the 1870s, but not until 1967 did the Supreme Court hold that the government needs a warrant to wiretap a telephone conversation.
While we wait for courts to weigh in, how much privacy do Americans have in their movements? Exactly as much as law enforcement agents believe they must give us.
That is why the two memos the ACLU seeks are so important. According to FBI General Counsel Andrew Weissmann, the government has prepared two memos that outline the Justice Departments conclusions regarding its obligations under Jones, and how they apply to a variety of location tracking methods and technologies. (Although we thought the memos had been authored by the FBI, the governments has now clarified that they originate with the Justice Department.)
The first memo, dated February 2012, is titled Guidance Regarding the Application of United States v. Jones to GPS Tracking Devices. As Weissmann told a public audience last spring:
So the issues are is [Jones] going to apply to boats? Is it going to apply to airplanes? Is it going to apply at the border? Whats it mean for the consent thats given by an owner? Whats it mean for the consent if its given by the possessor?
Weissmanns remarks (video here) raise the possibility that the government believes that the type of vehicle a person is in could impact his or her privacy rights. They also raise the question of whether the government is attaching GPS devices to peoples cars at the international border under more permissive rules.
The second memo, dated July 2012, is titled Guidance Regarding the Application of United States v. Jones to Additional Investigative Techniques. Weissmann explained:
[The] second memoranda [sic] is going to be about guidance about what this means for other types of techniques, beyond GPS, because theres 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.
While Weissmann did not elaborate on which investigative techniques he had in mind, the obvious one is tracking the location of cell phones. As a recent set of ACLU public records requests demonstrated, cell phone tracking is commonly used by federal, state, and local law enforcement agencies throughout the nation. According to numbers released to Congress last year, the big wireless carriers collectively receive 1.5 million requests from law enforcement each year, many of which are for location tracking.
What about our Fourth Amendment rights?
Americans have a strong interest in disclosure of the Justice Department memos. The Fourth Amendment protects Americans reasonable expectations of privacy by limiting the circumstances in which law enforcement agents may conduct searchesbut today only the executive branch knows what it believes those limits to be. There are at least two problems with this.
The ACLU is continuing to fight for release of the memos, and we will ask the court to order the Justice Department to release them because they are being improperly withheld. The purpose FOIA is to make sure the government doesnt operate under secret lawand right now thats exactly what these memos are.
warrentless tracking ?
Not our Constitutional governemnt
They wouldn’t do it without GPS companies permission
or following the gps in your cellphone
But they don’t answer the question ~ they stall !
and now they wants a computer ‘black box’ in every vehicle ?
It’s time for the tinfoil hat !!
The level of secrecy practised by government at all levels regardless of the controlling party is absurd. That the government can even contemplate that continuous monitoring of an individual’s cellphone for months at a time shows just how lawless they have become, and how little they respect the constitution.