The U.S. Justice Department today said the government should not be forced to publicly disclose information about criminal cases involving mobile phone tracking in which the defendant was acquitted or the case was dismissed.
The government's position was outlined this afternoon in a public records suit the American Civil Liberties Union and Electronic Frontier Foundation filed in Washington's federal trial court. The ACLU and EFF are reviewing cases in which federal agents used mobile phone tracking to follow suspects.
A federal appeals court ruling last year compelled DOJ to provide 214 names and docket numbers of cases that resulted in a public conviction or guilty plea. But the U.S. Court of Appeals for the D.C. Circuit called for further proceedings on whether the government should be required to turn over that same information for defendants whose cases ended in an acquittal or dismissed charges.
The government has identified six cases—in Washington, Florida and California—where there was an acquittal or dismissal. But DOJ lawyers said in court papers (PDF) filed this afternoon in Washington that releasing the information would cause an unwarranted invasion of privacy.
“Forcing these individuals to be confronted anew with old criminal charges would revisit upon them the stigma and embarrassment that accompany a criminal prosecution,” a Justice Department lawyer, Jonathan Cooper, said in the papers. “Given that none of the criminal charges were ultimately sustained, these individuals—who can claim their exposure to public scrutiny in the first instance was unwarranted—should not be exposed to public scrutiny a second time.”
ACLU lawyers Arthur Spitzer in Washington and Catherine Crump in New York are working with the Electronic Frontier Foundation’s David Sobel. The plaintiffs said they will challenge the effort to keep the case names and docket numbers secret.
"Americans have a strong interest in understanding the ways in which warrantless cell phone tracking impact their privacy rights. The cases the ACLU and EFF seek here are cases in which defendants were subjected to warrantless cell phone tracking and prosecutions nonetheless did not succeed," Crump said this afternoon in an e-mail. "Understanding what went wrong and why will help us all better understand the role of this surveillance technique in our criminal justice system."
Cooper of the Civil Division’s federal programs branch said in the court papers filed today that disclosure of the six cases in dispute will make only a marginal contribution, at best, to public knowledge of the scope and effectiveness of cell phone tracking as a tool of law enforcement.”
An acquitted defendant, Cooper said, has a strong privacy interest in withholding information about a criminal case and, he argued, there is minimal public interest in the information.
“Being associated with alleged criminal activity subjects an individual to public stigma, embarrassment and potential harassment,” Cooper said.
The ACLU acquired the names and docket numbers of 214 cases that resulted in public convictions or guilty pleas. DOJ withheld 15 other cases, including four dismissals and two acquittals. The government said it was withholding nine other cases for other reasons, citing, for example, the potential that a case is sealed.
U.S. District Judge James Robertson, before he retired from the bench, ordered the government to disclose the names and docket numbers of cases of cases that generated a public conviction or guilty plea.
The judge, however, ruled that information about prosecutions that resulted in acquittals or dismissals was exempt from public release.
The U.S. Court of Appeals for the D.C. Circuit last year upheld Robertson’s decision. The appeals court sent back, for further review, the debate about cases that ended in an acquittal or dismissal. The record at the time was silent on whether any such cases existed.
The ACLU is expected in May to respond to DOJ’s court papers. No hearing date is set.