The ACLU went to court Thursday to ask for the public release of two Justice Department memos that give federal agents and prosecutors guidance about using GPS devices and other location-tracking technology. A judge agreed to review the memos in camera — or, in private — to see whether the memos should be held back.
"We feel vindicated by the judge's decision to take a hard look at these documents," ACLU attorney Brian Hauss told NBC News.
The memos were issued after a 2012 Supreme Court ruling, U.S. v. Jones, which found that the government’s attachment and use of a GPS tracker to monitor a vehicle’s movements constitutes a "search" under the Fourth Amendment, and is therefore subject to the same legal requirements as other "search and seizure" procedures.
"Although Jones was a major victory for privacy, it also left a host of unanswered questions about the proper use of surveillance technologies going forward," wrote Hauss on the organization's blog. "The court did not decide whether the government must obtain a warrant to use GPS devices, nor did it explain how the Fourth Amendment applies to other types of location tracking technology, such as cellphone tracking, domestic surveillance drones and license plate readers."
The civil liberties group previously requested the memos under the Freedom of Information Act, and received them from the Justice Department, but the memos were basically blocks of black covering the information, "almost entirely censored," Hauss wrote. (One example is shown here.)
The Justice Department says the memos should not have to be turned over because they represent attorney work-product. But the ACLU argues that once opinions "become official government policy, the public has an absolute right to know what they are. Otherwise, the government is operating under secret law that makes accountability to the people impossible."
The ACLU made its appeal before a U.S. District Court in New York.