The US Court of Appeals for the District of Columbia Circuit [official website] on Tuesday ordered [opinion, PDF] the Department of Justice (DOJ) [official website] to disclose docket information of certain cases in which the DOJ used cell phone location data to track criminal suspects. The suit was filed by the American Civil Liberties Union (ACLU) [advocacy website] in July 2008 under the Freedom of Information Act (FOIA) [text], with the court asked to determine whether the public interest goals of the FOIA outweighed the privacy concerns of disclosing the information. The DOJ supported its argument against disclosure by citing Exemption 7(C), which states that "records or information compiled for law enforcement purposes" may be withheld "to the extent that disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy." However, the court found that because the privacy interests defendants retain regarding the facts of their convictions or public guilty pleas fall on the lower end of the spectrum, disclosure of facts so related does not constitute an unwarranted invasion of privacy, making Exemption 7(C) inapplicable. Additionally, the court supported its decision by distinguishing it from cases that resulted in more extensive disclosures with Judge Merrick Garland writing:
In this case, however, disclosure will reveal only the "bits" not the "whole." As already discussed, the most that disclosure is likely to lead to is the fact of a single conviction, not a comprehensive scorecard of a person's entire criminal history across multiple jurisdictions. Nor is there a web of statutory or regulatory policies obscuring that information, nor much expense nor logistical difficulty in gathering it.The court's decision affirmed in part that of the US District Court for the District of Columbia [official website], which also held that disclosure of information related to cases in which persons were convicted or entered public guilty pleas was appropriate given the lower privacy interests. However, the appeals court remanded the issue of whether disclosure is appropriate in cases involving individuals who were acquitted or whose cases were dismissed or sealed.
The ACLU is not finished with its investigation into how governments use cell phone location data to track criminal suspects. Last month the group announced that their affiliates were sending approximately 375 requests for information [JURIST report] in 31 states to reveal how law enforcement uses location data tracking on cell phones. Most jurisdictions have never encountered cell phone tracking as a legal question, so police are generally not required to obtain a warrant. The ACLU is demanding a review of information from each targeted department, including: if probable cause warrants are obtained to access cell phone location data, statistics on how frequently law enforcement gathers this data, how much money is being spent on cell phone tracking, and any other policies or procedures used to acquire cell phone location data. The ACLU also supports the Geolocation Privacy and Surveillance Act [materials], introduced to Congress in June, which would require government agencies to obtain a probable cause warrant before seeking location data.