This week brought fresh revelations about the National Security Agency’s
sloppy and invasive collection of phone data on Americans and others,
as reported first by The Washington Post. In another realm of
surveillance — the government’s broad use of location tracking devices —
the Justice Department was in federal court on Thursday defending its
refusal to release memos containing information about its policies
governing the use of GPS and other potentially invasive technologies.
The American Civil Liberties Union had brought the lawsuit to demand
that the department make the memos public. The documents were prepared
after a 2012 Supreme Court ruling, United States v. Jones, which held
that placement of a hidden tracking device on a suspect’s car
constitutes a “search” under the Fourth Amendment.
That case left lots of questions unanswered, including whether GPS
tracking always requires a warrant based on probable cause, and how the
Fourth Amendment applies to tracking someone 24/7 with cellphone
location technology. After the decision was released, the F.B.I.’s
general counsel, Andrew Weissmann, mentioned in a public talk that the
government was issuing memos containing official guidance for federal
agents and prosecutors on when they can use tracking technology and how
the Jones decision applies to other types of techniques, beyond GPS.
The public has a right to know the government’s policies on these
matters. There is very good reason to be concerned about the
government’s interpretation of its police powers, especially given the
Obama administration’s insensitivity to privacy in its mass collection
of phone data in the national security sphere.
When the A.C.L.U. filed a request for the memos under the Freedom of
Information Act, the Justice Department responded by handing over copies
with the text nearly entirely blanked out, prompting the lawsuit. The
Justice Department claims that the memos were prepared anticipating
litigation and are exempt from disclosure because they are a lawyer’s
work product. But to the extent Mr. Weissmann accurately represented the
memos, they also amount to statements of official policy, not merely
exchanges by lawyers on legal theories, which the work-product exception
is meant to protect.
Our strong hunch is that there is material in the memos that can and
should be revealed without harm to law enforcement or the appropriate
discussion of confidential legal strategies. At Thursday’s hearing,
Judge William Pauley III said he would personally review the documents
before deciding whether they should be released.
It is distressing that the administration, which claims to welcome a
debate over the government’s surveillance practices, time and again
refuses to be transparent about those practices. Instead of awaiting a
court order, the administration should release the tracking memos on its
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