Justice Department Won’t Say When the FBI Is Allowed To Track You

Screenshot of Justice Department legal memorandum on GPS tracking devices provided to the ACLU

When can the FBI track you? The Justice Department won’t say.

In the latest example of intense secrecy surrounding law enforcement surveillance tactics, the government has refused to release information outlining when it believes that it is legally permissible to track Americans using GPS devices and other location monitoring tools.

A landmark Supreme Court ruling last year held that using GPS trackers constituted a “search” and therefore falls under the Fourth Amendment’s protections against unreasonable searches and seizures (U.S. v. Jones). But the Obama administration has since remained cagey about how it is interpreting the ruling, with efforts to obtain documents detailing tracking tactics largely unsuccessful.

Now, a fresh attempt to seek clarification on the government’s legal position in regard to surveillance has been blocked. Responding to a request made under the Freedom of Information Act by the ACLU, the Justice Department released a set of key internal memos whose existence was revealed by the FBI’s general counsel during a public speech at the University of San Francisco. However, the memos, which apparently relate specifically to the Supreme Court ruling and its implications for tracking, were almost entirely redacted and marked “privileged and confidential.”

The ACLU is fuming over the nondisclosure, saying Wednesday that the decision “leaves Americans with no clear understanding of when we will be subjected to tracking—possibly for months at a time—or whether the government will first get a warrant.” The civil liberties group is planning to continue to press for the release of the documents, which it believes are being improperly withheld. “The purpose FOIA is to make sure the government doesn’t operate under secret law,” staff attorney Catherine Crump wrote in a blog post, “and right now that’s exactly what these memos are.”