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U.S. Must Reveal|Some Tracking Technology

(CN) - The Department of Justice must release documents on government policies and procedures for use of location-tracking technology in Northern California, a federal judge ruled.

In early 2012, the ACLU of Northern California and the San Francisco Bay Guardian newspaper submitted a Freedom of Information Act request to the Department of Justice seeking information about the federal government's use of location tracking technology to monitor and surveil suspects.

Among other things, the ACLU sought information on "the use or policies of utilizing any location tracking technology, including but not limited to cellsite simulators or digital analyzers such as devices known as Stingray, Triggerfish, AmberJack, KingFish or Loggerhead."

When the Justice Department failed to respond, ACLU sued it for wrongful withholding of agency records.

The Executive Office for United States Attorneys (EOUSA) processed the FOIA request and released a few documents, but claimed that many were exempt from disclosure because they are attorney work product and their release might teach people how to get around the law.

But U.S. Magistrate Judge Maria-Elena James on Sept. 30 ordered the release of a record from the EOUSA that contains 16 pages of templates used by prosecutors in connection with use of a pen register and trap and trace device.

The government withheld this document as work product prepared in anticipation of litigation.

However, James found that the template is not work product because the Justice Department "failed to establish that the template pertains to a specific claim or consists of more than general instructions to its attorneys with regard to applying for location tracking orders."

James also ordered the release of portions of the USA Book, which is used as a legal resource book and reference guide for federal prosecutors. Sections of the book titled "Electronic Surveillance Non-Wiretap," which discuss tracking devices generally and cellular telephone location information "function like an agency manual, providing instructions to prosecutors on how to obtain location tracking information," James said, ruling that they were not work product.

Other portions of the book relating to electronic surveillance, tracking devices and non-wiretap electronic surveillance in the context of prospective federal criminal prosecution and investigations also must be produced, despite the government's argument that disclosure of this information could allow people to "violate the law while evading law enforcement."

The government argued that if "would-be wrongdoers" had access to this information, they could learn "when and where certain investigatory techniques are not employed, and would be able to conform their activities to times, places, and situations where they know that unlawful conduct will not be detected."

However, James found that the documents are related to already well-known tracking technologies, and that "the public is already aware that minimizing vehicular or cell phone usage will allow them to evade detection."

"To the extent that potential law violators can evade detection by the government's location tracking technologies, that risk already exists," James said.

The government provided only conclusory statements that the public is not aware of the specifics of how or when the techniques are used, but did not state that the techniques are not generally known to the public, James said.

However, she determined that the government could keep multiple documents from the public based on the attorney work product privilege, including two pages that contain legal analysis of issues that could arise from the use of location-tracking devices.

"The withheld pages do not convey general agency policy regarding the use of location tracking devices, nor do they provide instructions for how the DOJ desires its attorneys to apply for orders authorizing their use. Here, the legal strategies and issues addressed in the withheld documents are protected because they relate to foreseeable litigation arising out of the government's criminal investigations," James stated.

James refused to order the release of EOUSA records that discussed potential legal strategies and arguments that federal prosecutors might consider in light of certain court decisions relating to GPS tracking and other investigative techniques.

"There is no indication that these memoranda were intended to function as an agency manual, or that they offer neutral analysis of the law," James found.

Instead, the purpose of the documents "is to convey litigation strategy, rather than convey routine agency policy," so they are entitled to work product protection.

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