FOIA Victory Will Shed More Light on Warrantless Tracking of Cell Phones

The D.C. Circuit Court of Appeals ruled on Tuesday (pdf) that the government must turn over information from criminal prosecutions in which federal law enforcement agencies obtained cell-site location information without a warrant. The suit, filed as part of EFF’s FLAG Project and in conjunction with the ACLU, sought the release of the case numbers and case names in which the government had tracked the location of a person’s cell phone without obtaining a warrant.

The Court’s decision is the latest victory in the fight to stop the government from tracking citizens’ movements without a warrant. The D.C. court’s ruling follows on the heels of the Supreme Court’s decision to review United States v. Jones – a case challenging the constitutionality of law enforcement’s warrantless tracking of a suspect using a GPS device. The decision also follows the introduction of several bills in Congress that would require law enforcement to obtain a warrant before tracking someone’s location through their cell phone.

Those bills were introduced in response to calls for location privacy reform by the Digital Due Process coalition, a diverse group of civil liberties groups like EFF and the Center for Democracy and companies like Google and Microsoft, that are pressing Congress to update electronic privacy law for the 21st century. And, of course, EFF has been fighting in the courts against warrantless cell phone location tracking for years, with much success. All of these developments are part of a growing trend toward greater public scrutiny, accountability, and transparency when it comes to law enforcement’s location tracking practices – a need that the court acknowledged in Tuesday’s decision.

The current FOIA lawsuit stems from a 2007 FOIA request by ACLU and EFF that sought the release of the Department of Justice’s policies and procedures for obtaining cell-site location information in criminal investigations, as well as the docket information from any case in which the DOJ had obtained location information without a warrant. In response to the FOIA request, the government disclosed that cell-site information had been used in 255 criminal prosecutions but refused to disclose any of the details relating to the cases, including the case numbers and case names.

After EFF and ACLU filed suit, the district court ordered the government to produce the list of case names and numbers in which the government had obtained location information without a warrant and had obtained a conviction. Both parties appealed the court’s decision – we wanted the entire list of cases; the government didn’t want to disclose any cases from the list.

On appeal, the D.C. Circuit upheld the district court’s decision that the government had to disclose the case records that resulted in a conviction. In holding that the disclosure of these records would be in the public interest, the court noted that 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.” The court remanded to the district court to decide whether disclosure of records that did not result in a conviction was similarly in the public interest.

We’re very pleased with this week’s victory and hope that it’s only one more step in the process of uncovering the full extent of the government’s location tracking practices. We look forward to sharing the documents that are released as a result of the court’s decision, and continuing our fight to strengthen the laws that protect your location privacy.