Government Not Obligated to Disclose GPS Tracking Policy Memos, Court Rules, Despite Fourth Amendment Concerns

After the Supreme Court ruled in United States v. Jones, 132 S. Ct. 945 (2012), that the use of GPS devices to track vehicle movements is a “search” governed by the Fourth Amendment, the Department of Justice (DOJ) drafted two memoranda addressing how the ruling affects ongoing and future criminal cases. The American Civil Liberties Union (ACLU) sued to compel public disclosure of the memos under the Freedom of Information Act (FOIA), 5 U.S.C. § 552. A court ruled that the DOJ does not need to disclose the memos at this time, because it expects that the policies contained in the memos “will be borne out in the courts.” ACLU v. U.S. DOJ, No. 1:12-cv-07412, mem. and order at 12 (S.D.N.Y., Mar. 11, 2014).

In Jones, the Supreme Court considered whether police may use data obtained from a GPS tracking device attached to a suspect’s car without a warrant. The court has held that the Fourth Amendment, which generally prohibits searches and seizures by police without probable cause and a warrant, protects the person, not the person’s property, and that physical intrusion is not an essential part of a “search.” See Katz v. United States, 389 U.S. 347, 351 (1967). It held in Jones that the installation and use of this device constituted a search under the Fourth Amendment.

The court left numerous questions unanswered in Jones, however, such as the extent of a person’s reasonable expectation of privacy in the digital age, the extent to which their voluntary provision of information online waives their right to privacy, and the possibility that short-term GPS monitoring might not violate privacy rights. Jones, 132 S. Ct. at 955-56. After the ruling was issued, officials with the DOJ disclosed the existence of two memoranda it had prepared regarding the application of Jones to ongoing investigations and prosecutions, including the use of GPS and other monitoring or surveillance techniques.

The ACLU, reasoning that the memos are important for understanding how the government intends to interpret constitutional protections in light of Jones, requested copies of the memos under FOIA. The DOJ refused to produce the memos, arguing that they fell under two exemptions: Exemption 5, for documents covered by the work product privilege and other privileges, and Exemption 7(E), which exempts documents that disclose law enforcement “techniques and procedures.” ACLU, mem. order at 3; 5 U.S.C. §§ 552(b)(5), (b)(7)(E).

After the DOJ’s refusal, the ACLU filed suit, as permitted by FOIA. 5 U.S.C. § 552(a)(4)(B). The court ruled that the memos are covered by Exemption 5, because they concern foreseeable legal questions involving the government’s criminal cases. ACLU, mem. order at 11. It disagreed with the government’s Exemption 7(E) claim, however, finding that the government did not meet its burden of proving that disclosure would “risk circumvention of the law.” Id. at 13.

Board-certified criminal defense attorney Michael J. Brown has fought for the people of west Texas in criminal cases for more than two decades. He draws on his experience as an FBI agent and a prosecutor to assist clients charged with alleged offenses related to drugs, white collar crime, and other matters. To schedule a confidential consultation to discuss your case, please contact us today online or at (432) 687-5157.

More Blog Posts:

Court Grants, then Stays, Preliminary Injunction in Case Alleging that NSA Metadata Collection Violates Fourth Amendment, Texas Criminal Lawyer Blog, December 20, 2013
Police Test New Methods of GPS Tracking, Leaving Questions of How Much Surveillance the Fourth Amendment Allows, Texas Criminal Lawyer Blog, November 6, 2013
Devices that Track Cell Phone Signals Violate Fourth Amendment, Say Privacy Advocates, Texas Criminal Lawyer Blog, February 28, 2013

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