Ninth Circuit Shines Light on Feds’ Spying Equipment

SAN FRANCISCO (CN) – Transparency groups scored a major victory at the Ninth Circuit on Thursday when a three-judge panel ordered the Justice Department to disclose most of the surveillance-related documents it has been shielding for more than five years.

The panel sided with the Northern California chapter of the American Civil Liberties Union by finding the Justice Department’s claim that most of the documents describing various law enforcement techniques are exempt from public disclosure is faulty.

A federal judge must now go through the documents and remove only the parts where the feds advanced an original legal theory about the surveillance techniques, or the agency’s position on the type of authorization necessary to use certain surveillance technologies.

“This is a very significant win for transparency,” said Linda Lye, senior staff attorney with the ACLU Northern California. “It says the government cannot cloak materials in secrecy simply because it was written by a lawyer or because it implicates future criminal prosecution.”

Lye’s comment refers to the Justice Department’s reliance on a legal concept called attorney work product, which stipulates that materials prepared in advance of an adversarial court proceeding could not be disclosed to opposing counsel.

The Justice Department used the theory to avoid disclosing documents relating to various surveillance techniques employed by law enforcement, documents the ACLU requested in 2012.

Specifically, the department’s criminal division withheld two sections of its manual called USABook that related to tracking devices and methods of non-wiretap electronic surveillance.

The use of such technologies, the most notorious of which is called the Stingray – which acts as a cellphone tower and receives signals from cellular devices, potentially assisting law enforcement in locating suspects – had just come into the public’s radar when the ACLU filed its case.

“They had been in use since the mid-1990s, but it wasn’t until 2011 that we found out about it,” Lye said.

The existence of such advanced surveillance technologies prompted several important legal questions, like whether police should have to get a warrant before deploying a stingray, according to Lye.

Apart from the legal questions, there were other policy questions about other judicial safeguards and prerequisites for the use of such technology, Lye said, but the trouble came when the ACLU attempted to determine which technologies were being deployed currently, how often, and in what circumstances.

In the San Francisco Bay Area, the secrecy of police departments and federal agencies has prompted several communities to pass robust surveillance-transparency ordinances.

Last year, Santa Clara County passed the Surveillance Tech Ordinance requiring county law enforcement agencies to have a public policy on the use of surveillance technologies before they acquire them, and must write an annual report divulging how the technologies are used.

The city of Oakland passed a similar law, and more are being considered by other Bay Area municipalities.

Nevertheless, the Justice Department continued to maintain the documents at issue were properly withheld from disclosure requirements due to the attorney work product exemptions.

ACLU sued and lost in federal court. But on Thursday, the group won a large reversal with the Ninth Circuit ordering most of the documents released.

“Substantial portions of the USABook contain technical information and general resources for staff attorneys concerning legal developments,” Circuit Judge Marsha Berzon, a Bill Clinton appointee, wrote for the panel. “Unlike the sections that specifically address legal arguments, these sections are not attorney work product.”

Specifically, the two sections of the USABook, which the panel reviewed behind closed doors, were divided into three sections: technical information, considerations relating to court authorization, and legal background relating to possible motions to suppress filed by criminal defense attorneys.

The panel ruled that technical information, general legal analyses and instructions to law enforcement about how to obtain court authorization are not protected as attorney work product.

“In contrast, the portions of the USABook that present legal arguments supporting the agency’s positions on the type of authorization necessary to obtain electronic information are attorney work product,” Berzon wrote. “These portions of the documents reflect the legal theories of DOJ’s attorneys.”

Lye says the court victory will not only shed light on how and when the government uses various surveillance technologies, but will also make it more difficult for the DOJ in particular to use attorney work product as a blanket excuse for withholding documents.

“It’s something they do routinely,” she said.

The Justice Department did not return a request for comment as of press time.

Circuit Judges Michael Daly Hawkins, also a Clinton appointee, and Mary Murguia – a Barack Obama appointee – joined Berzon’s opinion.

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