On July 1, 2008, the American Civil Liberties Union filed a lawsuit in the United States District Court for the District of Columbia against the U.S. Department of Justice (DOJ) under the Freedom of Information Act (FOIA) and the Federal Declaratory Judgment Act. The plaintiffs asked the court for injunctive and declaratory relief, specifically asking the release of certain records that had previously been requested.

News reports raised the possibility that law enforcement officers were, at least in some circumstances, obtaining cell phone tracking data directly from mobile carriers without obtaining warrants for probable cause from the court. The plaintiffs claimed that on November 29, 2007, they filed FOIA requests with the Drug Enforcement Administration and the Executive Office for United States Attorneys (both part of the DOJ), asking for expedited processing and seeking records about the government's tracking of the location of individuals' mobile phones without first obtaining a warrant based on probable cause. The requests sought all records about defendant's policies, procedures, and practices for obtaining mobile phone location information for law enforcement purposes. They also sought all information on criminal prosecutions of particular individuals who were tracked using mobile phone location data where the government did not secure a prior warrant based on probable cause. Nine months later, plaintiffs claim that defendant never gave them a complete response, failing to reply to administrative appeals, and that DOJ failed to release the records.

Plaintiffs sought an order for defendant to immediately process and provide all outstanding requested records; an injunction from defendant's charging plaintiffs processing fees; a declaratory judgment that the ACLU qualifies as a "representative of the news media" for purposes of fee assessments under the FOIA; and an award for plaintiffs' costs and attorneys' fees.

Defendant filed a motion for summary judgment, and plaintiffs filed a cross-motion for summary judgment. On March 26, 2010, the Court (Judge James Robertson) granted summary judgment to the plaintiffs, as to the identified case names and docket numbers of criminal prosecutions of persons who have been convicted or have entered public guilty pleas. The Court, however, denied the plaintiffs' cross-motion for summary judgment as to the production of docket information in prosecutions of those who were acquitted or whose cases were dismissed or sealed, and denied their request for disclosure of case names in "draft application" and "template application" documents. ACLU v. Dep't of Justice, 698 F. Supp. 2d 163 (D.D.C. 2010).

On September 6, 2011, the Court of Appeals for the District of Columbia Circuit issued an opinion. ACLU v. U.S. Dept. of Justice, 655 F.3d 1 (D.C. Cir. 2011). The Court (in an opinion by Judge Merrick Garland) affirmed the district court's order requiring the disclosure of docket information from criminal cases in which the government prosecuted individuals after obtaining a warrant for cell phone data without showing probable cause, and where those individuals were ultimately convicted or entered public guilty pleas. The Court, however, vacated the remainder of the district court's decision and remanded the case for further development of the record and reconsideration. The Court noted that FOIA includes a strong presumption in favor of disclosure. Here, the Court found that the public interest in disclosure outweighed the marginal privacy intrusion that may occur. However, because the lower court drew a distinction between the permissible and impermissible documents in a way that neither side briefed, the case was remanded to develop the record further to see how many cases existed in the different categories and to gain more information about some of them. The Court also noted that, at oral argument, defendant's counsel had suggested that defendant might be able to provide plaintiffs with the data they really want, rather than disclosing the individual documents. The Court said that might be the basis for a settlement, but that the Court could not consider it because it was not raised in the appellate briefs nor in the district court proceedings.

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Plaintiffs again appealed, arguing disclosure about criminal prosecution is not an invasion of privacy. Thus, plaintiffs contended, defendant could not have demonstrated such a disclosure disclosure could reasonably be expected to constitute an unwarranted invasion of personal privacy, and the district court had therefore erred in granting summary judgment. Oral argument was held February 20, 2014, and the case is pending.>>

Emily Goldman - 11/20/2012
David Postel - 03/16/2014


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