CA DC: ACLU wins public disclosure of cell phone location data cases from DOJ

In an FOIA case, the ACLU sued for disclosure of cases involving cell phone tracking data because it was practically impossible to gather the information without it. The D.C. Circuit held the information was subject to disclosure because the privacy interest in the information was low. ACLU v. DOJ, 10-5159 (D.C. Cir. September 6, 2011):

On the other side of the balance, we find a significant public interest in disclosure, something altogether absent in Reporters Committee. Because the disclosure of private citizens’ criminal histories “reveals little or nothing about [the] agency’s own conduct,” and because that was all that was at issue in Reporters Committee, the “public interest in disclosure [was] at its nadir” in that case. Reporters Comm., 489 U.S. at 773, 780. By contrast, as we discuss below, the disclosure of prosecutions in which the defendants were subject to warrantless cell phone tracking, and then were convicted or pled guilty, would shed light on government conduct. Accordingly, it falls within FOIA’s scope because it advances “the citizens’ right to be informed about what their government is up to.” Reporters Comm., 489 U.S. at 773 (internal quotation marks omitted).

1. The use of and justification for warrantless cell phone tracking is a topic of considerable public interest: it has received widespread media attention18 and has been a focus of inquiry in several congressional hearings considering, among other things, whether the Electronic Communications Privacy Act of 1986, Pub. L. No. 99-508, 100 Stat. 1848 (1986), should be revised either to limit or to facilitate the practice. Courts are divided as to whether the government must show probable cause before it can obtain cell phone location data, as well as on related questions regarding warrantless GPS surveillance.

The Supreme Court has recently granted certiorari to address the GPS issue. See United States v. Jones, 2011 WL 1456728 (June 27, 2011), granting cert. to Maynard, 615 F.3d 544. The disclosure sought by the plaintiffs would inform this ongoing public policy discussion by shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool. It would, for example, provide information about the kinds of crimes the government uses cell phone tracking data to investigate. As the plaintiffs note, with respect to wiretapping Congress has balanced privacy interests with law enforcement needs by permitting the government to use that technique for only the more serious offenses, see 18 U.S.C. § 2516, and the plaintiffs (and others) may decide to argue for similar legislation to govern cell phone tracking. Disclosure would also provide information regarding how often prosecutions against people who have been tracked are successful, thus shedding some light on the efficacy of the technique and whether pursuing it is worthwhile in light of the privacy implications. Information from suppression hearings in these cases could provide further insight regarding the efficacy of the technique by revealing whether courts suppress its fruits, and would disclose the standard or standards the government uses to justify warrantless tracking. Information from suppression hearings would also provide facts regarding the duration of tracking and the quality of tracking data, facts that would inform the public discussion concerning the intrusiveness of this investigative tool.

. . .

Nor are we persuaded by the government’s contention that the interest in informing the public discussion is deficient because the plaintiffs have insufficient evidence that disclosure will show government wrongdoing. Whether the government’s tracking policy is legal or illegal, proper or improper, is irrelevant to this case. It is true that, where “the public interest being asserted is to show that responsible officials acted negligently or otherwise improperly in the performance of their duties, the requester must establish more than a bare suspicion in order to obtain disclosure.” Favish, 541 U.S. at 174. But the plaintiffs are not (or at least not only) seeking to show that the government’s tracking policy is legally improper,22 but rather to show what that policy is and how effective or intrusive it is. “[M]atters of substantive law enforcement policy … are properly the subject of public concern,” whether or not the policy in question is lawful. Reporters Comm., 489 U.S. at 766 n.18.

Blog of the Legal Times here.