Privacy SOS

Another secret law, another day at the Obama DOJ

We’ve heard this before from the Obama Justice Department: we can’t tell you what the law is because we have to keep you safe. National security was the administration’s justification for keeping secret its interpretation of Section 215 of the Patriot Act. Then it was its justification for keeping secret the administration’s legal justification for killing people — including Americans — with flying robots. That’s an ugly track record, but a consistent record nonetheless. So outrageous as it may be, it doesn’t come as a huge surprise to hear the DOJ say that it won’t tell the public how it interprets surveillance law, lest the “criminals” gain the upper hand.

The above image comes from one of two nearly entirely redacted legal memos the ACLU requested from the DOJ in the wake of the US v. Jones Supreme Court ruling on GPS tracking. Catherine Crump of the ACLU explains the Jones decision:

[The Court held] that the Fourth Amendment restricts the circumstances in which the government may attach a GPS device to a car and secretly track its movements. Although the Court’s decision in Jones makes clear that the government’s attachment and use of a GPS tracker on a car constitutes a search under the Fourth Amendment, it does not say whether that search requires a warrant from a judge—a crucial protection because it forces agents to justify their actions to a neutral outsider. Furthermore, the court’s opinion does not address other methods of location tracking, such as cell phone tracking, drones, or license plate readers.

Even though the highest court in the land ruled on GPS tracking, we are still not clear on exactly what rules police and federal agents must follow when they want to follow us around using high tech tools. While a net positive for privacy advocates, the decision left much to be desired in terms of clarity and breadth. There are a number of other location tracking cases winding their way through the courts, and prior decisions have held contradictory positions. In other words, it’s not clear at all what the government thinks it is allowed to do. Crump puts it like this:

While we wait for courts to weigh in, how much privacy do Americans have in their movements? Exactly as much as law enforcement agents believe they must give us.

That’s why the ACLU filed the public records request: to find out what the Department of Justice thinks police and prosecutors can legally do when they want to track us. But according to recent custom the DOJ doesn’t think we have the right to know this information, and sent the civil liberties organization a bunch of mostly blacked out pages. 

Since “the purpose of FOIA is to make sure the government doesn’t operate under secret law,” the ACLU is appealing to a judge to try to get access to the unredacted memos.

Let’s hope the judge agrees and releases the full memos, so we can see what our government thinks is legal and what’s beyond the pale when it comes to monitoring our physical locations. But sight unseen, we can guess at what’s in them simply by listening to what the Department of Justice says about our privacy rights. 

Judging by a February 2012 DOJ brief in another location tracking case, it doesn’t look good. Back then the government asserted that Americans have “no privacy interest” in information showing our physical locations. You read that right.

Defenders of the growing state surveillance regime often tell us that we shouldn’t worry about pervasive government monitoring if we "have nothing to hide." That cliché ignores both the fact that we all have something to hide and our constitutional guarantee to be free from government harassment in our private affairs. On the other hand, the government truly has "no privacy interest" — or rather, no legitimate secrecy interest — in keeping the law secret from the governed. Secret law, after all, the one of the hallmarks of authoritarian rule.

We’ve seen far too often that when the government wants to keep something secret, it’s because the protected information would either embarrass elected officials or outrage the people, leading to change in policy — or both. Given that the DOJ told us that we have “no privacy interest” in our location information, I’m betting that those memos contain a reading of recent court decisions that would rub most people the wrong way.

Here's hoping we find out.

© 2021 ACLU of Massachusetts.