DOJ must release records about cellphone location tracking

You-Jin Han | Freedom of Information | Feature | September 7, 2011

The U.S. Court of Appeals for the District of Columbia held yesterday that the U.S. Department of Justice must release case docket information in certain criminal cases resulting in convictions or guilty pleas.

The ruling applies to cases in which the government used cellphone location tracking data without first obtaining a warrant supported by probable cause and potentially signals a departure from the "practical obscurity" privacy argument established by the U.S. Supreme roughly 22 years ago.

In American Civil Liberties Union v. U.S. Department of Justice, the court held that the public interest in the requested materials outweighed any claimed privacy interests in the records. Therefore, Exemption 7(C) of the federal Freedom of Information Act did not bar disclosure of the materials.

The case began in 2007, when the ACLU became concerned by reports of federal law enforcement agencies using location data from cellphones obtained from telecommunications companies as a means to track individuals.

The ACLU filed unsuccessful FOIA requests with the Drug Enforcement Administration and the Executive Office for U.S. Attorneys, seeking information concerning the prosecution of individuals connected to warrantless cellphone tracking data, as well as the agencies’ policies and procedures in obtaining such cellphone location information. In 2008, the ACLU filed its lawsuit against the DOJ to compel disclosure.

A lower court ordered the DOJ to disclose docket information – which included the case name, court and docket number – from criminal cases in which individuals were convicted or entered guilty pleas and the government had obtained the information without making a showing of probable cause. When the government seeks to access individuals' cellphones in order to track their locations, it requests that a judge issue an order compelling a telecommunications company to provide access to such data. The ACLU contended that "[p]rosecutors appear to routinely take the view that the government can obtain cell site location information without a warrant, by simply presenting to a magistrate 'specific and articulable facts showing . . . reasonable grounds to believe that . . . the records or other information sought, are relevant and material to an ongoing criminal investigation.'"

The appeals court affirmed the district court’s ruling related to these records, rejecting the DOJ’s argument that FOIA Exemption 7(C) applies to the documents.

Exemption 7(C) permits an agency to withhold “records or information compiled for law enforcement purposes” to the extent that disclosure “could reasonably be expected to constitute an unwarranted invasion of personal privacy.” The court found that the public interest in the content of the documents outweighed the privacy interest of the tracked individuals, and therefore was not an “unwarranted” invasion.

In conducting this balancing test, the court cited U.S. Department of Justice v. Reporters Committee for Freedom of the Press, in which the Supreme Court held in 1989 that the dissemination of information contained in an FBI “rap sheet” would constitute an unwarranted invasion of privacy under Exemption 7(C).

The court emphasized that the privacy interest in Reporters Committee was much greater than in the present case.

The court noted that Reporters Committee stood for the proposition that “the scope of Exemption 7(C) can extend even to convictions and public pleas.” However, the court stated that “the disclosure of convictions and public pleas is at the lower end of the privacy spectrum . . . [t]hose interests are weaker than for individuals who have been acquitted or whose cases have been dismissed.”

The DOJ unsuccessfully argued that the ACLU sought information which was "practical[ly] obscur[e]," as the ACLU could not "identify the prosecutions in which [it was] interested without the government's assistance." In Reporters Committee, the Court held that the information in FBI-maintained rap sheets, despite being publicly available in disparate locations, implicated individuals' privacy interests because the information was practically obscure at the time. The Court there distinguished rap sheets from other types of records, saying, "Plainly . . . there is a vast difference between the public records that might be found after a diligent search of courthouse files, county archives, and local police stations throughout the country and a computerized summary located in a single clearinghouse of information." The rap sheets contained a "compilation of otherwise hard-to-obtain information," including an individual's birth date, physical characteristics, and arrests, convictions, charges, and incarcerations.

The court in the present case rejected the DOJ's practical obscurity argument, saying, "The privacy interests at stake in this case . . . are considerably weaker than those at issue in Reporters Committee." Disclosure of the docket information sought by the ACLU would only disclose "the 'bits,' and not the whole," as in Reporters Committee, as it would only disclose information concerning convictions or pleas, rather than mere arrests or charges. Additionally, unlike the rap sheets in Reporters Committee, which the FBI preserved until the individual turned eighty years old, the requested docket information was all less than ten years old.

The court also emphasized that unlike the steps a citizen would have had to complete in order to compile a rap sheet like that in Reporters Committee -- a 'diligent search of courthouse files, county archives, and local police stations throughout the country" -- modern "computerized government services like PACER make it possible to access court filings concerning any federal defendant from the comfort of one's home or office." As further examples of the accessibility of such information to citizens, the court referred to newspaper reports of federal prosecutions available on the internet and the DOJ's own issuance of press releases naming those indicted or convicted. "If someone wants to know whether his neighbor or potential employee has been indicted for, convicted, or pled guilty to a federal offense," said the court, "he may well find out by simply entering a Google search for that person's name."

Therefore, the court noted that even a use of the requested information that varied from the intended use, such as use of the docket information to locate related case files in public records, would constitute less of an intrusion on private information than in other cases where courts have found the potential privacy harms outweighed the public interest in disclosure. The DOJ argued that if the records were disclosed, the ACLU might contact convicted defendants to determine whether they knew they were the targets of such tracking. However, the court stated that "the public interest in disclosure is . . . more than sufficient to tip the scales against the marginal privacy intrusion that could occur."

In contrast, the court noted the public’s overriding interest in the topic of warrantless cellphone tracking, and the value of the records in “shedding light on the scope and effectiveness of cellphone tracking as a law enforcement tool.” As evidence of the potential value of the records to public discourse, the opinion cited the fact that courts are split on whether the government must demonstrate probable cause in order to obtain cell phone location data.

Another argument the court noted in favor of disclosure of the docket information was that it would shed light on "facts that would inform the public discussion concerning the intrusiveness of this investigative tool," concerns such as the efficacy of such tracking, the degree to which it served as a worthwhile technique in the face of privacy concerns, and the government's standards in using it. For example, the information could reveal that "defendants may have been charged with lesser offenses than the ones upon which the tracking was originally predicated, thus making it appear that the technique was used for less serious crimes than was actually the case."

Additionally, the court noted the parallel public issue of warrantless GPS surveillance, an issue that the Supreme Court recently granted certiorari to address.

The appellate court vacated the non-disclosure order for the docket information for which the district court did not order disclosure -- those cases resulting in acquittal, dismissal or a sealed record -- and remanded the case for further fact-finding.