The same day Americans learned the NSA has been collecting phone records of millions of Verizon customers, Justice Department lawyers in San Francisco sought to block release of records about its use of location-tracking technology in phones, known as Stingray.
Not great timing for DOJ lawyers, but a deadline of June 6, required the department to file, by Thursday, a motion to toss the Freedom of Information Act request by the ACLU of Northern California and the San Francisco Bay Guardian newspaper.
Stingray devices can mimic a cell tower but are small enough to be placed in a van and can be used to pinpoint the location of cell phones, smart phones or broadband internet cards and those carrying them. A mobile phone sends signals every seven to 15 seconds to cell towers whether your on the phone or not. The Stingray tricks the phone into connecting to it.
One privacy problem with Stingrays is that they are indiscriminate. They locate not only the target cell phone, but also obtain information from all devices on the same network in a given area.
The potential privacy and Fourth Amendment issues around Stingray arose last year in the Arizona case of Daniel Rigmaiden, who was charged with alleged filing of false income tax returns. The ACLU filed an amicus brief in the case opposing use of Stingray devices.
The ACLU and Bay Guardian sued in 2012 in San Francisco saying the DOJ improperly withheld information about Stingray use in response to their Freedom of Information Act request seeking records back to 2008.
The Justice Department said it withheld 548 pages as exempt from, or nonresponsive to, FOIA requirements, while releasing 43, according to its court filing.
“All of the material being withheld (in whole or in part) constitutes work product not subject to disclosure pursuant to FOIA,” wrote DOJ trial attorney Brad Rosenberg.
Among the items withheld was a 16-page template created by the U.S. Attorney’s office in the Northern District of California, used by prosecutors “when applying for a pen registers [sic] and trap and trace devices,” the filing states. In addition, it withheld two pages of a Power Point presentation of the office’s legal analysis of issues that may arise over the use of location tracking devices, Rosenberg states.
The FOIA, Rosenberg argued, exempts from mandatory disclosure attorney work product and that would include material in anticipation of litigation and pre-litigation counseling.
He asked U.S. Magistrate Judge Maria-Elena James to throw out the ACLU suit.
She set a hearing for August 22 to hear both sides.
In addition, the government argues the material is also exempt from disclosure because it could disclose “techniques and procedures for law enforcement investigations” and thus might allow people to circumvent the law.
The ACLU will have the opportunity to file a response in coming weeks.
Case: ACLU v. DOJ, No. 12-cv-4008MEJ