After a Supreme Court decision made early in 2012 ruled GPS tracking constituted a search under the Fourth Amendment, the Federal Bureau of Investigation had to turn off and tried to collect around 3,000 devices. But how is the agency conducting its business now without warrantless use of that technology, which FBI General Counsel Andrew Weissmann called last year a “sea change” for operations?
Based on two memos obtained by the American Civil Liberties Union through Freedom of Information Act requests, it’s clear that the Justice Department (the ACLU originally thought the memos were authored by the FBI) isn’t willing to say much. The ACLU called the heavily redacted memos it received “yet another example of secret surveillance policies.”
“The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking—possibly for months at a time—or whether the government will first get a warrant,” ACLU Staff Attorney Catherine Crump wrote. “Privacy law needs to keep up with technology, but how can that happen if the government won’t even tell us what its policies are?”
The documents are called “Guidance Regarding the Application ofUnited States v. Jones to GPS Tracking Devices” and “Guidance Regarding the Application of United States v. Jones to Additional Investigative Techniques.” When they’re described as heavily redacted, it means that nothing aside from the text explaining the court decision in the first 57-page document and no body text at all in the second 54-page document is visible.
Wired reported the Justice Department defending the extent of redaction of the documents because the information is “privileged and confidential.”
The ACLU pointed out the importance of obtaining more information from the documents because 1) the Supreme Court’s decision, although it said GPS trackers on cars constituted a search, didn’t say explicitly that this search required a warrant from a judge and 2) the decision didn’t address tracking through use of other technology such as cell phones, drones or license plate readers.
“The Fourth Amendment protects Americans’ reasonable expectations of privacy by limiting the circumstances in which law enforcement agents may conduct searches—but today only the executive branch knows what it believes those limits to be,” Crump wrote on the ACLU’s website.
Crump continued stating that the ACLU would continue to fight for the information within the memos to be released.
“The purpose FOIA is to make sure the government doesn’t operate under secret law—and right now that’s exactly what these memos are,” she wrote.
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