National News

ACLU wins suit on feds' e-surveillance, devices

Posted January 18, 2018 6:47 p.m. EST

SAN FRANCISCO -- The government must release records describing the policies that guide federal prosecutors in obtaining authorization to use electronic surveillance and tracking devices for criminal investigations, a federal appeals court ruled Thursday in a case from San Francisco.

The suit, filed by the American Civil Liberties Union in 2012, sought Justice Department documents advising prosecutors on technology that can be used to track a criminal suspect, and the legal arguments to be presented in court when seeking to use the devices.

``It's virtually impossible for the public to learn about the government's use of new surveillance technology,'' said ACLU attorney Linda Lye.

She said prosecutors act in secret when they seek authorization to use the technology and present arguments in court, and the results may not be known for many years, until the government describes use of the device in a criminal prosecution.

The Justice Department argued that most of the documents were exempt from disclosure because they were the ``work product'' of the department's lawyers, or because they described law enforcement techniques. The Ninth U.S. Circuit Court of Appeals in San Francisco largely disagreed.

The technical information in the documents is intended to ``inform investigators and prosecutors about available technologies'' and not to disclose prosecutors' legal theories or strategies, Judge Marsha Berzon said in the 3-0 ruling.

She also said instructions on seeking court approval to obtain information about a suspect's location are not confidential, unless they would reveal the government's planned legal arguments to obtain the devices and use the evidence they produce. The ruling upheld most of a federal magistrate's decision requiring disclosure.

Lye said the ruling would entitle the public to ``a brief description of the technology being used'' in a proposed investigation, unless that technology itself was secret.

``We want to unearth the government's overarching policies in location tracking,'' the ACLU lawyer said. ``It's important to understand what court authorization the government is getting,'' and it might also enable criminal defendants to challenge the evidence in court, she said.

The Justice Department did not immediately respond to a request for comment.