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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.”

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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."