Justice Department lawyers are fighting in a Washington federal appeals court to keep secret the case names and docket numbers of criminal prosecutions in which the authorities tracked defendants through cell phone data.
DOJ lawyers contend in the litigation in the U.S. Court of Appeals for the D.C. Circuit that the privacy interests of defendants outweighs any nominal public value of the information the American Civil Liberties Union wants to review. Judge James Robertson of Washington federal district court ordered the government to disclose the data in March 2010.
DOJ lawyers said, among other things, that disclosing information that a person has been tracked via a cell phone “can have a significant impact on an individual’s social relationships." ACLU attorneys contend a person who has been publicly indicted “have nothing left to lose by being further identified as targets of warrantless cell phone tracking.”
The appeals court heard argument in the dispute in February. Since March, DOJ and the ACLU have submitted four letters to the court addressing developments in the U.S. Supreme Court and, more recently, a Justice Department press release issued in a Miami terrorism case.
ACLU lawyers said in their latest letter (PDF) that the news release shows the Justice Department “continues its practice of affirmatively publicizing” the names of indicted individuals “in ways that are easily and permanently available” to the general public. The letter questions statements that U.S. Attorney Wifredo Ferrer made about one of the defendants in the terror case.
“This practice belies its argument, in this appeal, that individuals who have been openly indicted have a privacy interest that trumps the public’s compelling interest in learning about the government’s warrantless cell phone tracking through the disclosure of criminal case docket information,” ACLU attorney Catherine Crump said in the letter to the appeals court.
In response to the letter, DOJ Civil Division lawyer John Koppel said on May 17 in a letter (PDF) that the government “plainly has an interest in informing the public about noteworthy prosecutorial activities—just as in its capacity as custodian of government records under FOIA, it has an obligation to protect the privacy interests of individuals.”
Justice lawyers said in court papers in December in the D.C. Circuit that the trial judge made a mistake in ordering disclosure of case names and docket numbers of criminal cases where courts granted requests to obtain cell phone location data without probable cause determinations.
DOJ argued the “substantial privacy interest in nondisclosure of this information outweighs the highly attenuated public interest in disclosure.”
“[T]he fact that the government voluntarily chooses to inform the public of certain prosecutorial activities that it deems newsworthy does not mean that it is insensitive to the FOIA privacy interests of the individuals it prosecutes,” Koppel said in court papers in the D.C. Circuit. “This is an utterly false dichotomy.”
D.C. Circuit Judges Merrick Garland and Douglas Ginsburg and Senior Judge Stephen Williams have not ruled whether to affirm or reject the trial order to disclose the case names and docket numbers.