DOJ must give ACLU certain documents pertaining to wireless searches, 9th Circuit rules

In efforts to obtain the U.S. Department of Justice’s interpretation of a pivotal U.S. Supreme Court ruling on the 4th Amendment’s limits on GPS surveillance, the American Civil Liberties Union received a significant victory Thursday.

The 9th U.S. Circuit Court of Appeals ruled that some of the department’s internal documents regarding the case are not entirely protected by exceptions to the Freedom of Information Act.

In a unanimous opinion written by Circuit Judge Marsha S. Berzon, the court found that FOIA exemptions protecting government documents that include “attorney work product” and would disclose law enforcement investigation and prosecution “techniques and procedures” did not cover certain sections of the DOJ’s USABook.

The book is an expansive manual used in U.S. attorney offices across the country that includes memos on official interpretations of landmark Supreme Court decisions and guidance on how to argue reoccurring legal issues. ACLU v. U.S. Department of Justice, 2018 DJDAR 643 (9th Cir., Jan. 18, 2018).

The ACLU of Northern California and the now-defunct San Francisco Bay Guardian filed an FOIA request with the U.S. attorney’s office for the Northern District of California in 2012, seeking information on how the federal prosecutor’s office obtained location information from electronic devices such as phones and computers for surveillance purposes.

The request was made in the wake of the U.S. Supreme Court’s decision in United States v. Jones, 565 U.S. 400 (2012), which determined that the placement of a GPS device on the vehicle of a criminal suspect was a “search” under the 4th Amendment.

The ACLU filed a lawsuit in federal court when the DOJ did not comply with the request. Shortly thereafter, the department provided some documents, but refused to hand over many of the requested documents, among them a “Tracking Devices Manual,” which included memos and sample affidavits, warrants and court orders addressing the acquisition of cellular phone location data, and a section of the Federal Narcotics Manual titled “Electronic Surveillance-Non-Wiretap.”

U.S. Magistrate Judge Maria-Elena James ordered the government to turn these documents over in 2014. The department appealed.

On Thursday, the 9th Circuit said that technical information in these documents was not entirely protected “attorney work,” specifically those sections that included generic legal analyses.

However, the court ruled that certain portions of the USABook that constituted original interpretation of law, “particularized arguments, strategies, or tactics generated in anticipation of litigation, even if not for a particular claim,” as Berzon described them, were protected under the FOIA exception.

The court ordered James to determine which portions of the USABook are included under that definition, but to release everything else on remand.

Linda Lye, a staff attorney with the ACLU who argued the case before the 9th Circuit, described the ruling as a “win for transparency.”

“What this makes clear is that the government can’t cloak its policies in secrecy just because they were written by lawyers,” she said in an interview. “The public has a right to know what type of court authorization the government is seeking when it is conducting wireless surveillance.”

Judges Michael Daly Hawkins and Mary H. Murguia concurred with Berzon’s opinion.

The DOJ did not respond to a request for comment by press time.