Courts to Further Study Cell-Tracking Claims

(CN) - Noting "factual uncertainties," the D.C. Circuit ordered a federal judge to take a closer look at a case involving the government's warrantless cellphone tracking of Americans.

Concerned by reports that the government was using cellphone location data in criminal prosecutions, sometimes without a warrant, the American Civil Liberties Union asked the Justice Department to release relevant documents under the Freedom of Information Act (FOIA).

Both parties appealed after a Washington federal judge ordered the Department of Justice to release docket information only in cases where a person under surveillance was convicted or pleaded guilty.

In a unanimous decision, the D.C. Circuit upheld the District Court's decision to release the information. While it agreed with the government that disclosure might "compromise more than a de minimis privacy interest" of the people named on the dockets, it concluded that it "would not compromise much more."

"Neither the specific list actually at issue, nor information that might be derived from the docket information on that list, will disclose personal information that is not already publicly available and readily accessible to anyone who might be interested in it," Judge Merrick Garland wrote for the three-judge panel. "Nor will disclosure under FOIA make that information any more accessible than it already is through publicly available computerized databases. At most, it will simply provide one more place in which a computerized search will find the same person's name and conviction - and even that is only on the assumption that someone takes the docket information from the list, looks up the underlying cases, and then puts that underlying information on the Internet."

Garland added that there is "a significant public interest in disclosure."

"In sum, because disclosure of the information considered in this part would 'shed[] light on [the government's] performance of its statutory duties,' it "falls squarely within [FOIA's] statutory purpose,'" he wrote. "And in light of the strength of the public interest in disclosure and the relative weakness of the privacy interests at stake, we conclude that production of the requested information will not constitute an 'unwarranted' invasion of personal privacy."

But there are "too many factual uncertainties" for the court to sanction disclosure of personal information in acquitted or dismissed cases, the judge said.

"Rather than attempt to resolve a question that may turn out to be purely academic, we conclude that the better course is to vacate this portion of the District Court's decision and remand the case for that court to determine whether any of the docket numbers refer to cases in which the defendants were acquitted, or to cases that were dismissed or sealed (and remain sealed)," the 35-page decision states. "The court may develop this information by requiring affidavits of the government or additional entries in the government's Vaughn index."

In the 1973 case Vaughn v. Rosen, the D.C. Circuit denied claims that requested FOIA documents were subject to exemption. "A Vaughn Index must: (1) identify each document withheld; (2) state the statutory exemption claimed; and (3) explain how disclosure would damage the interests protected by the claimed exemption."

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