Thursday, January 17, 2013, by Anne Marie Tosco
In January of 2012, the Supreme Court unanimously held that law enforcement could not put a warrantless GPS tracker on a suspect’s car in United States v. Jones. Following the ruling, the American Civil Liberties Union filed a request under the Freedom of Information Act compelling the FBI to disclose two memos related to GPS tracking, in order to determine how the agency planned to interpret the Court’s decision. The ACLU learned of the memos when hearing Andrew Weissmann, FBI General Counsel, speak at a legal conference in February of 2012. The FBI responded to the request with pages of heavily redacted material, leaving the questions posed by the ACLU unanswered.
The FBI responded to the ACLU’s request for its interpretation of the United States v. Jones holding with pages of heavily redacted material.
One memo Weissman spoke of examined the use of GPS tracking, including methods of such tracking on transportation besides cars, such as airplanes and boats, while the other focused on how the Jones decision might apply to non-GPS evidence-gathering techniques. The memo entitled, “Guidance Regarding the Application of United States v. Jones, 132 S. Ct. 945 (2012), to Additional Investigative Techniques” was turned over to the ACLU completely redacted. The other, “Guidance Regarding the Application of United States v. Jones, 132 S. Ct. 945 (2012), to GPS Tracking Devices” is mostly redacted save a brief recap of the Supreme Court’s holding.
Catherine Crump, Staff Attorney for the ACLU Speech, Privacy, and Technology Project lamented the secrecy, calling the Justice Department’s decision “unfortunate [as it] 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.” Americans do not know whether the Jones holding requires a warrant from a judge in order to install a GPS tracking device on a car, or if other location tracking methods such as that of cell phones, drones, and license plates is permissible under the ruling. The ACLU believed the memos, which were authored with the FBI but originated in the Justice Department, to be helpful in answering these questions. Crump believes such secrecy should not exist in a democratic society, and that the government should tell Americans what its policies are.
The ACLU insists, “Americans have a strong interest in the disclosure of the Department of Justice memos,” as it is worried that the government’s interpretation of the Jones ruling might stretch the Court’s decision beyond that the Court intended, and because such secrecy inhibits Congress from engaging in informed policymaking regarding surveillance issues. Based on the headings in the memos themselves, the Justice Department believed the information within to be “privileged and confidential.” Whether answers to the questions posed by the ACLU about government surveillance and tracking methods are answered remains to be seen. The ACLU maintains that it will continue to seek the release of the content of the memos, believing the content to be improperly withheld in light of the purpose it ascribes to the Freedom of Information Act – to “make sure that government doesn’t operate under secret law.”