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Judge Rejects DOJ’s Secrecy Argument That Public Doesn’t Know How to Evade Location Tracking

Judge Maria-Elena James

In a case involving a Freedom of Information Act request for information related to government policies and procedures for law enforcement use of cell phone tracking, a federal judge has ordered the release of records, which the Justice Department sought to keep secret by claiming they would “alert law violators”—otherwise known as criminals—to how to evade detection.

The ACLU in Northern California and San Francisco Bay Guardian filed a lawsuit seeking documents on location tracking technology on July 31, 2012. The Justice Department has produced a few documents but has continued to insist that many of the documents requested are “work product” so they are protected from disclosure. The agency has also refused to search for documents that were requested.

Relevant portions in something called USABook, a “legal resource book and reference guide for federal prosecutors,” were identified, but the Justice Department claimed they could keep the sections secret because they contain details on “investigatory techniques.”

“Information about the specifics of when various investigatory techniques are used could alert law violators to the circumstances under which they are not used without addressing the fact that the public is already aware that minimizing vehicular or cell phone usage will allow them to evade detection,” the agency asserted. [Judge’s order: PDF]

But plaintiffs rebutted this argument arguing that they could not argue that these portions needed to be kept secret to prevent “circumvention” by criminals. The documents “pertain to well-known technologies used to track individuals through cell phones and vehicles.”

Maria-Elena James, a United States Magistrate Judge in the US District Court of Northern California, agreed. “To the
extent that potential law violators can evade detection by the government’s location tracking technologies, that risk already exists,” James stated.

The judge referenced a case where the government had put forward a similar argument rejected by Judge Susan Yvonne Illston, who also is a district court judge in the Northern District of California.

…Judge Illston rejected the same argument advanced by the Government in a case where the FBI offered an affidavit that used similar conclusory language to support its entitlement to withhold documents…There, in response to a FOIA request seeking information regarding the FBI’s investigation of the Occupy movement, the FBI submitted a declaration stating that “[d]isclosure of this information could enable subjects to circumvent similar currently used techniques and procedures by law enforcement,” and explained that “[w]hile these techniques may be known by the public in a general sense, the technical analysis of these sensitive law enforcement techniques, to include the specifics of how and in what setting they are employed, is not generally known to the public.”

Judge Ilston held that while the FBI is entitled to withhold technical analysis” of the techniques and procedures used to conduct law enforcement investigations that are not generally known, it cannot withhold investigatory procedures. Similar
to the declaration in this case, the court found the FBI’s conclusory assertion that, “even though the technique is generally known, the specifics on how and when the technique is used is not generally known,” to be in adequate. The Court concluded that the FBI’s assertion that “the public is unaware of the specifics of how and when a technique is employed is not enough to sustain a withholding under Exemption 7(E).”…

As James wrote, “”The same is true in this case.” The Justice Department at no point stated that the “techniques are not generally known to the public.” The government could not reasonably claim the parts of the USABook should be kept secret.

Specifically, this means “guidance” provided to federal prosecutors or case agents on “electronic surveillance and tracking devices” including “obtaining location information from wireless carriers” will be released. A portion of a “federal narcotics manual” involving “electronics surveillance non-wiretap” will have to be provided to the ACLU and San Francisco Bay Guardian as well.

What is remarkable is that the government likes to argue that drug dealers, pedophiles, gang leaders, crime lords or terrorists will take advantage of disclosures on surveillance and change their tactics. This judge explicitly rejects this ignorant argument noting that there is plenty of information in the public domain on how to protect one’s privacy. That it might call attention to how government tries to track people should not be enough to prevent disclosure so the government can avoid debate on whether the surveillance violates privacy.

The judge also ordered the release of a record from the Executive Office for United States Attorneys (EOUSA). It is 16 pages of “templates” used by prosecutors in regards to pen register and trap and trace devices.

“The DOJ has failed to establish that the template pertains to a specific claim or consists of more than general instructions to its attorneys with regard to applying for location tracking orders. Accordingly, the template is not work
product,” the judge decided.

There were, however, multiple documents the judge decided the government could keep from the public. James argued that some of the records related to “foreseeable litigation” arising out of criminal investigations and were exempt under FOIA.

Additionally, the judge issued an order instructing the Justice Department to search for records it had not tried to locate [PDF].

Years into this lawsuit, the agency apparently determined there were “349 remaining matters that may contain responsive records and which are not believed to be open but remain under court seal or were sealed pursuant to the pen register statute.”

What that means in plain English is 349 records exist that the Justice Department just has not reviewed for release in the case.

It has not because, as it complained to the judge, the “review process would require: (1) physical search of the materials to find responsive documents; (2) line-by-line review of each application to determine whether it seeks location tracking information; and (3) contacting AUSAs [Assistant US Attorneys] and agents associated with the application(s) to ascertain the sensitivity of the information.”

Judge James was not sympathetic. The DOJ cannot decline to search for records when they exist and there is no case that says if they are subject to exemptions the agency does not have to search for them at all.

“While the DOJ contends that the records that would be found as a result of this search would be exempt from disclosure, this does not discharge the Government’s duty to first undertake its

The judge ordered the government to complete its search and get back to her when they can provide information on the records they are claiming must remain concealed.

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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."