Obama's DOJ Tries to Sneak Around Supreme Court GPS Tracking Ruling, ACLU Upset
January 17, 2013 2:08 PM
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You want the truth? You can't handle the truth! (says the DOJ)
The American Civil Liberties Union
(ACLU) hit a brick wall when its Freedom of Information Action (FOIA) of 1966 (
) lawsuit requesting detailed documents on GPS tracking procedures was rejected by the U.S. Department of Justice.
I. GPS Tracking is Back
The issue of GPS tracking has been a contentious one. In some high profile incidents federal agents, state police, or local police have attached GPS trackers to citizens’ cars and used the continuous tracking as incriminating evidence. While law enforcement agencies contend that GPS surveillance is a powerful tool for fighting crime, the Supreme Court of the United States (SCOTUS) clearly thought otherwise,
U.S. v. Jones
; PDF) that
planting GPS trackers on citizens' vehicles
generally is a violation of Fourth Amendment rights.
Following the January ruling, the FBI General Counsel Andrew Weissmann provoked ACLU scrutiny when he spoke at a February law enforcement convention in San Francisco, suggesting that other forms of location tracking were arguably legal.
While not specifically mentioned, one such form of tracking would be to seize citizens' cell phones or request records from mobile carriers in order to gain a record of locations based on tower pings. Such tracking has only been used in a handful of cases nationwide, but is growing in use.
GC Weissmann also suggested that boats and other types of vehicles may be fair game for tracking as his interpretation was that the SCOTUS prohibition was narrow, only covering GPS tracking on cars.
The FBI argues that it may still be legal to use GPS tracking on boats.
[Image Source: Ron Niebrugge]
He also makes reference to a pair of memos, detailing how tracking was to be carried out.
II. ACLU Gets Non-Answer From DOJ
In the wake of those comments the ACLU filed suit to obtain those memos, arguing that their release would make clear whether the FBI and other DOJ agencies are actively pursuing such forms of location tracking, and what the rules are (e.g. whether a warrant is required).
The DOJ gave the ACLU the memos this week, but they were almost entirely redacted, leaving little useable information. The sweeping redactions were justified in a note from the DOJ that cites the stipulation that FOIA requests can be redacted to prevent the release of information that would aid criminals.
Catherine Crump, an attorney for the ACLU, blasts the DOJ memos, writing:
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.
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 DOJ release the FBI memos, but it redacted most of the details in the documents.
[Image Source: Iceni]
Given the DOJ's relative non-response it appears that the DOJ and ACLU will continue to square of in federal court or possibly in another Supreme Court case.
The ACLU's position is clear -- warrantless tracking is a danger to Americans' freedoms.
The DOJ's position appears to be that while it will respect the SCOTUS rulings narrowly, it will freely engaged in any form of investigation not explicitly prohibited. The Obama administration has gone to bat for the DOJ in court, arguing that when it comes to law enforcement, sometimes
safety trumps the need for transparency and protection of civil liberties
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RE: Tip of the Iceberg
1/19/2013 1:55:43 PM
This isn't new. Under Bush all you had to do is declare them an enemy combatant and poof you're gone.
The whole so called Patriot Act is anything but.
With that said its also good to read the whole act
"Addressing previous conflicts with the Obama Administration regarding the wording of the Senate text, the Senate-House compromise text, in sub-section 1021(d), also affirms that nothing in the Act
"is intended to limit or expand the authority of the President or the scope of the Authorization for Use of Military Force". The final version of the bill also provides, in sub-section(e), that "Nothing in this section shall be construed to affect existing law or authorities relating to the detention of United States citizens, lawful resident aliens of the United States, or any other persons who are captured or arrested in the United States
." As reflected in Senate debate over the bill,
there is a great deal of controversy over the status of existing law
"If you can find a PS3 anywhere in North America that's been on shelves for more than five minutes, I'll give you 1,200 bucks for it." -- SCEA President Jack Tretton
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