This can’t be. The Obama administration proclaimed themselves to be the most open administration in history.
Two key memos outlining the Justice Department’s views about when Americans can be surreptitiously tracked with GPS technology are being kept secret by the department despite a Freedom of Information Act lawsuit filed by the ACLU to force their release. The FBI’s general counsel discussed the existence of the two memos publicly last year, yet the Justice Department is refusing to release them without huge redactions. (You can see the heavily censored versions sent to the ACLU here and here, and our original FOIA request here.)
The Justice Department’s unfortunate decision leaves Americans with no clear understanding of when we will be subjected to tracking—possibly for months at a time—or whether the government will first get a warrant. This is yet another example of secret surveillance policies—like the Justice Department’s secret opinions about the Patriot Act’s Section 215—that simply should not exist in a democratic society. Privacy law needs to keep up with technology, but how can that happen if the government won’t even tell us what its policies are?
The power of law enforcement’s discretion
The Supreme Court has weighed in on location tracking, but the government still has wide latitude to exploit new technologies and legal uncertainty. In February 2012, the Supreme Court issued a landmark decision in U.S. v. Jones, holding that the Fourth Amendment restricts the circumstances in which the government may attach a GPS device to a car and secretly track its movements. Although the Court’s decision in Jones makes clear that the government’s attachment and use of a GPS tracker on a car constitutes a search under the Fourth Amendment, it does not say whether that search requires a warrant from a judge—a crucial protection because it forces agents to justify their actions to a neutral outsider. Furthermore, the court’s opinion does not address other methods of location tracking, such as cell phone tracking, drones, or license plate readers.