Federal Appeals Court Upholds Disclosure of Cellphone Tracking Data
- Federal Appeals Court Upholds Disclosure of Cellphone Tracking Data
Updated 3:41 p.m.
A federal appeals court in Washington today sided against the U.S.
Department of Justice in upholding the public release of information about court
cases in which the authorities used cellphone location data to track criminal
The U.S. Court of Appeals for the D.C. Circuit said the disclosure of
information about prosecutions that involved cellphone tracking is of
significant public interest.
The American Civil Liberties Union sued over access to the data in July
2008 in Washington federal district court. A three-judge appeals panel said
the use of warrantless cellphone tracking—in addition to the related issue of
warrantless GPS surveillance—has generated substantial interest in recent
“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,” Circuit Judge Merrick Garland
wrote. “It would, for example, provide information about the kinds of crimes
the government uses cell phone tracking data to investigate.”
A lawyer for the ACLU, Catherine Crump, who argued in the D.C. Circuit,
said in an e-mail: "Americans have a strong interest in understanding when and
how our cell phones are being converted into tracking beacons by the
government without a warrant, which apparently has become a common practice.
Tracking someone’s location 24 hours a day for days on end can reveal very
private personal information, and the government should not be able to do it
without a strong suspicion that it will turn up evidence of a crime."
John Koppel of DOJ’s Civil Division argued for the government. A DOJ
spokesman said the department is reviewing the court's decision.
The information the ACLU sought included case names and docket numbers, in
addition to policies and procedures law enforcement officers use in
obtaining mobile phone data.
U.S. District Judge James Robertson ordered DOJ to produce docket
information in cases that ended in a conviction or a public guilty plea. But
Robertson refused to compel the government to produce information about cases that
were dismissed or sealed. Both sides appealed.
DOJ wanted the three-judge panel—Garland and Judge Douglas Ginsburg heard
the case with Senior Judge Stephen Williams—to overturn Robertson’s
decision forcing the government to release docket information in public cases.
The ACLU asked the appeals court to overturn the denial of the request for
information about cases in which the defendant was acquitted or whose cases
were dismissed or sealed. The court's opinion is _here_
Writing for the panel, Garland rejected the Justice Department’s concern
that the release of a list of public cases would violate a person’s privacy
rights in bringing renewed attention to a conviction.
The list, Garland wrote for the panel, “contains little that is personal.”
The appeals court said any privacy intrusion is “marginal” and outweighed
by the public interest in disclosure.
The list of cases, Garland said, would disclose information that is already
public—a trial or a public guilty plea, for instance—and not actions such
as an arrest that may not have been a public record.
“The fact that information about these proceedings is readily available to
the public reduces further still the incursion on privacy resulting from
disclosure,” Garland said.
Garland said “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.”
The appeals court said the issue of whether the government’s cellphone
tracking policy is legal or proper is not relevant to the dispute over access
to information about cases. The court rejected DOJ’s argument that the
release of the list is not justified because it alone will not show government
The D.C. Circuit in its ruling revived the ACLU’s demand for access to
records in sealed or dismissed cases. The appeals court remanded that part of
the dispute to the trial court for further proceedings.
The court said the record is insufficient to uphold or reject Robertson’s
decision to allow DOJ to keep those records secret. For instance, the court
said it is unclear whether the requested information would reveal ongoing
“[T]he privacy calculus becomes increasingly more significant if disclosure
extends to those who were acquitted, or to those whose activities were
never the focus of public attention, such as uncharged investigative subjects,
witnesses, or bystanders,” Garland wrote in the opinion.
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