US may withhold phone tracking data in some criminal cases

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The U.S. Justice Department's use of cell-phone tracking in prosecutions that don't end in a conviction need not be disclosed to a civil rights group attacking the practice, an appeals court ruled in a privacy- rights case.

The American Civil Liberties Union sued under the Freedom of Information Act for records that included case names and docket numbers of prosecutions in which the government obtained tracking data without a warrant. The group argued that it was in the public interest to learn the role that warrantless tracking played in the cases.

"The government, having brought the full force of its prosecutorial power to bear against individuals it ultimately failed to prove actually committed crimes, has a special responsibility — a responsibility it is fulfilling here — to protect such individuals from further public scrutiny," the U.S. Court of Appeals in Washington said in a 2-1 ruling.

Disclosure would "constitute an unwarranted invasion of personal privacy," the court said.

The ruling comes as U.S. officials defend the National Security Agency's secret surveillance program. Documents leaked by former security contractor Edward Snowden have led to revelations that the NSA stored phone records in vast databases. The ACLU and other groups argue that such data collection violates privacy, while government officials say the data helps combat terrorism.

In February, the Justice Department asked a federal court for permission to preserve indefinitely phone records collected by the NSA, beyond the five years now permitted by the Foreign Intelligence Surveillance Court, which reviews government requests to engage in certain electronic surveillance.

Friday's case concerned physical tracking through a cellphone's GPS, which can determine a person's precise location by receiving signals from global positioning satellites, the ACLU said in court papers.

The ACLU initially sought the information from the U.S. Drug Enforcement Administration and the Executive Office for U.S. Attorneys. The ACLU then sued the Justice Department.

In response, the U.S. identified 229 prosecutions since September 2001 in which a judge granted its request for cell- phone location data without ruling on probable cause. The Justice Department refused to provide the list to the ACLU, saying the information was exempt from disclosure.

A trial judge ordered the release of information in cases leading to a conviction, a ruling the same appeals court upheld in 2011. Left unanswered was whether the data must be disclosed in 15 prosecutions that ended in acquittals, dismissals or sealing orders. The ACLU didn't raise challenges over nine sealed cases.

"We want to find out how the government is using cellphones as tracking devices," ACLU Legal Director Arthur Spitzer said in a telephone interview. "The government was doing this without getting a warrant."

Spitzer said he disagreed with the court's reasoning.

"We don't understand what genuine private interest the court thinks it's protecting here," he said.

In dissent, Circuit Judge Janice Rogers Brown said that technological advances make true privacy virtually impossible.

"The court says unconvicted persons are 'entitled to move on with their lives without having the public reminded of their alleged but never proven transgressions,'" Brown wrote. "Alas, Google, unlike God, neither forgets nor forgives."

The case is ACLU v. U.S. Department of Justice, 13-5064, U.S. Court of Appeals for the District of Columbia Circuit (Washington).


With assistance from Del Quentin Wilber in Washington