Jan. 18, 2013 at 11:47 AM ET
After the Supreme Court ruled in January 2012 that GPS monitoring data obtained secretly without court authorization could not be used in a trial, the Department of Justice drew up two memos outlining guidance for law enforcement. The American Civil Liberties Union filed a request to see the memos, yet received versions that were heavily redacted. The advocacy group contends that how cops will use GPS and other location tools — even after the Supreme Court decision — remains a mystery.
"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," wrote ACLU staff attorney Catherine Crump, in an article Wednesday.
The ACLU raises particular questions over the ruling — specifically, that use of a GPS tracking device in this case constituted a "search" under the Fourth Amendment and therefore subject to the same legal requirements as other "search and seizure" procedures. The DOJ memos are supposed to have answered those questions. Chief among them is the concern over whether or not "court authorization" means a warrant issued by a judge, "a crucial protection because it forces agents to justify their actions to a neutral outsider," in Crump's words.
When it comes to using secret GPS trackers, magnetic devices attached by cops to the underside of cars, concerns include whether or not the ruling would apply to other vehicles such as boats, or whether the practice would be carried out at the international border "under more permissive rules."
While the first memo primarily addresses those GPS tracking devices, the second memo is said to provide legal guidelines for other location tracking techniques, such as monitoring cellphone data.
When reached by NBC News, a Department of Justice spokesperson said the following:
We can't comment specifically on these memos as this is a matter currently in litigation, but certain FOIA (Freedom of Information Act) exemptions exist to protect law enforcement techniques and the candor of internal legal or policy deliberations.
The spokesperson also shared links to two Freedom of Information Act request exemptions, further explanations of why those documents are legally allowed to be kept secret.
The first is that "such disclosure could reasonably be expected to risk circumvention of the law" — in other words, you don't give crooks the cop's playbook, or any data associated with an ongoing investigation. The second exemption is for "inter-agency or intra-agency memorandums or letters which would not be available by law to a party other than an agency in litigation with the agency." That one is a little more hazy, or in the DOJ's own words, "somewhat opaque."
The ACLU says it will continue to work to obtain less redacted versions of the memo, under the argument that these exemptions do not pertain. "The purpose FOIA is to make sure the government doesn't operate under secret law," Crump wrote. "Right now that’s exactly what these memos are."