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Justice Department Keeps GPS Tracking Legal Opinions Secret

The American Civil Liberties Union (ACLU) has received what it considers to be two key memos, which indicate how the Justice Department views when it can and cannot legally track Americans with GPS tracking devices. The memos requested after the ACLU sued the department in a Freedom of Information Act (FOIA) request are both heavily redacted to the point where it makes it pretty much useless that the Justice Department released them.

The memos were released as part of a FOIA lawsuit the ACLU filed to force their release back in August. The ACLU noted in a blog post the FBI’s general counsel “discussed the existence of the two memos publicly last year.” Despite the selective sharing on the part of the general counsel, the Justice Department blacked out entire portions of pages in the memos and decided to keep secret legal interpretations of how law enforcement may legally use GPS tracking on US citizens.

According to ACLU staff attorney Catherine Crump, the memos “outline the Justice Department’s conclusions regarding its obligations” under US v. Jones, unanimous Supreme Court ruling where the court found law enforcement must get a warrant when using GPS tracking devices. The memos also describe “how they apply to a variety of location tracking methods and technologies.”

The released memos show the Justice Department’s Criminal Divison prepared a memo titled, “Guidance Regarding the Application of United States v. Jones to GPS Tracking Devices,” on February 27, 2012, over a month after the Supreme Court ruling. The division also drafted another memo, dated July 5, 2012, which was labeled an “attorney work product” that “should not be disseminated outside the Department of Justice.”

The Justice Department redacted parts of the memos that FBI General Counsel Andrew Weissman spoke about in public. Crump highlighted remarks he gave (video here) on the first memo:

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? What’s it mean for the consent that’s given by an owner? What’s it mean for the consent if it’s given by the possessor?

And the second memo:

[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.

What Weissman may have been suggesting, as Crump pointed out, is the government may think it has much more permissive rules at the international border. Crump also wondered if these “other types of techniques” might include cell phone location tracking.

The censoring of the memos by the Justice Department is yet another example of government interpretations of the law being kept secret from the American public. It is authoritarian for any government to not keep its citizens informed of how it interprets laws, which are supposed to apply to all people in the country equally (whether that happens in practice or not).

The government has secret legal opinions on when it can and cannot kill US citizens with drones. Senator Ron Wyden of Oregon has made requests to view these opinions but the Obama administration has refused to let him see targeted killing memos, even though he is by law supposed to view them so he can conduct oversight.

The ACLU has requested these memos be released but a judge ruled that the government was within its right under FOIA to not release the legal interpretations.

The Foreign Intelligence Surveillance Court makes rulings authorizing warrantless surveillance under the FISA Amendments Act (FAA). Despite efforts by Senator Jeff Merkley of Oregon to amend the reauthorization of the FAA at the end of 2012, this was rejected by the Obama administration (even though it had previously indicated to Wyden it would be open to a process of making the court’s secret rulings public in some form).

Additionally, the government has secret interpretations of at least one section of the PATRIOT Act—Section 215. The ACLU’s Alexander Abdo said they make it possible for “the government to get secret orders from a special surveillance court (the FISA Court) requiring Internet service providers and other companies to turn over ‘any tangible things.'”

The body of secret law is growing under President Barack Obama each and every day. The Justice Department appears to be in the business of developing innovative theories that blaze a trail for government lawyers and prosecutors to engage in acts, operations or prosecutions that have traditionally been impossible because they would have been perceived as violating citizens’ rights. An administration that pledged to be the most transparent administration ever and different than President George W. Bush has proven time and time again to be picking up where the previous administration left off.



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Kevin Gosztola

Kevin Gosztola

Kevin Gosztola is managing editor of Shadowproof. He also produces and co-hosts the weekly podcast, "Unauthorized Disclosure."