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 suspects.
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 years.
“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 wrongdoing.
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 investigations.
“[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.