The Justice Department is fighting the American Civil Liberties Union effort to review information about six failed criminal prosecutions that involved the use of warrantless tracking of cellphones.
At issue is whether the department can keep secret information about six cases that ended in an acquittal or dismissed charges. A trial judge in Washington told DOJ to turn over docket information about successful cases in which investigators tracked cellphones. An appeals court last year upheld that ruling. Now, the focus is on the failed prosecutions.
Justice Department lawyers, including Jonathan Cooper of the Civil Division, said in a recent court filing (PDF) in Washington that "there is a strong privacy interest in withholding the requested information about the six acquittals, and there is no significant countervailing public interest in disclosure of this information."
ACLU lawyer Catherine Crump said in court papers (PDF) filed Friday that a categorical rule saying a non-convicted defendant's privacy interests always trumps the public right to know about the case doesn't fly in reality.
"Senator Ted Stevens was a non-convicted defendant. John Edwards is a non-convicted defendant," Crump wrote. "Roger Clemens is a non-convicted defendant. Michael Jackson was a non-convicted defendant."
If those cases involved mobile phone tracking, Crump said, DOJ would be seeking to withhold docket information from the public. Crump said "the publicly-prosecuted-but-not-convicted defendant is simply not in the same privacy boat as the never-charged, never publicized suspect."
Learning more about failed prosecutions that involved warrantless tracking of cellphones, Crump said, could illuminate a law enforcement practice that is under scrutiny across the country.
"Was the evidence obtained through warrantless cell phone tracking suppressed—leading to acquittal or dismissal—because a court found that the warrantless cell phone tracking had violated a defendant's Fourth Amendment rights?" Crump wrote.
DOJ lawyers contend the privacy interests implicated in disclosure of the information includes protecting "defendants from the embarrassment and opprobrium of being linked to criminal charges." Keeping the information secret, DOJ said, "allows these individuals a chance to move on rather than being thrust involuntarily back into the public eye."
Acquitted or dismissed defendants, Cooper wrote in court papers, "have a significant interest in being let alone to rebuild their lives without being confronted repeatedly with old and unsustained criminal charges."
ACLU lawyers criticized DOJ as taking an inconsistent position, touting criminal cases through news conferences and press releases but hiding behind privacy to protect non-convicted defendants.
The fact DOJ holds press conferences and issues news releases while cases are pending, Cooper said, "is irrelevant to whether publicity is warranted for prosecutions after a court has found wanting the evidentiary or legal basis for the indictment."
Judge Amy Berman Jackson of U.S. District Court for the District of Columbia has not set a hearing date. The ACLU's suit has been pending since July 2008.