San Francisco – The ACLU of Northern California prevailed in court today in a suit under the Freedom of Information Act (“FOIA”) seeking the Department of Justice’s policies related to the use of location tracking surveillance technology in criminal investigations.
The ACLU filed this lawsuit because of the enormous secrecy surrounding the government’s use of new surveillance technologies. If the government uses a surveillance tool without any court authorization at all, it is virtually impossible for the public or criminal defendants to learn about the technique. Even when the government seeks court authorization, those proceedings are under seal and ex parte, meaning they happen behind closed doors and without the participation of any other party to challenge the government’s position. In the past, the government has taken advantage of this secrecy and avoided public scrutiny of its surveillance practices: For example, it used invasive cell-phone surveillance tools commonly known as Stingrays for a decade and half before the public learned of their existence or the policies that govern them. After much public outcry, the Department of Justice adopted a policy under which it will seek a warrant before using such devices.
Today’s Ninth Circuit decision prevents the government from cloaking its surveillance policies in secrecy simply because they were written by lawyers or because they implicate potential criminal prosecutions. The public now has a right to know basic information about some of the government’s surveillance techniques and what type of court authorization, if any, the government seeks before using such techniques.
“This ruling is a victory for democratic accountability and government transparency. It will shed much needed light on the government's surveillance efforts,” said Linda Lye, a senior staff attorney with the ACLU of Northern California.
The Ninth Circuit opinion can be found here: https://www.aclunc.org/docs/ACLU_v_DOJ_9th_Cir_Op.pdf