UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

AMERICAN CIVIL LIBERTIES UNION, : et al., : : Plaintiffs, : : v. : Civil Action No. 08-1157 (JR) : DEPARTMENT OF JUSTICE, : : Defendant. :

MEMORANDUM

Plaintiffs American Civil Liberties Union and American

Civil Liberties Union Foundation (“ACLU”) sue the United States

Department of Justice (“DOJ”)under the Freedom of Information Act

(“FOIA”),

, et seq., seeking documents pertaining

to the use of cell phone tracking in criminal investigations and

prosecutions.

The ACLU seeks this information to address what it

asserts is a serious, and potentially unconstitutional, invasion

of privacy. The issue in this FOIA action is not one of

constitutional dimensions, however. It is whether the government

has properly invoked certain FOIA exemptions to withhold, in

whole or in part, lists it has compiled identifying criminal

cases by name, case number and court, in which the prosecution

used cell phone records or real-time data to track cell phone

location without a judicial determination of probable cause;

lists of applications for such data; and documents reflecting the government’s policies, procedures, and practices for obtaining

cell phone records.

The FOIA questions presented are: (1) whether

Exemptions 6 and 7(C) permit withholding the list of case names

and docket numbers of the criminal prosecutions; (2) whether

Exemptions 6 and 7(C) permit withholding the case names and

docket numbers of cases in which applications to obtain cell

phone records were made; (3) whether Exemptions 2 and 7(E) permit

redaction of the templates used by Assistant United States

Attorneys when preparing applications for cell phone tracking

authority; and (4) whether the government’s search for documents

responsive to the ACLU’s FOIA request was adequate.1

1. List of criminal prosecutions

The government invokes FOIA Exemptions 6 and 7(C) to

withhold the case names and docket numbers of 255 criminal

prosecutions in which courts granted applications to obtain cell

phone location data without probable cause determinations.

(b)(7)(C), (b)(6). The two exemptions overlap -

both (somewhat ironically, considering the Fourth Amendment flag

the ACLU is flying in this case) are meant to protect privacy.

Exemption 7(C) permits withholding when disclosure “could

1 Initially, the ACLU also sought an unredacted version of a final application to engage in cell phone tracking. Since the parties completed their summary judgment briefing, the government has produced a version of the final application with fewer redactions, to the ACLU’s satisfaction. [# 38].

- 2 - reasonably be expected to constitute an unwarranted invasion of

personal privacy,” while Exemption 6 permits withholding only

when disclosure “would constitute a clearly unwarranted invasion

of personal privacy.”2 The proper application of both exemptions

requires a balancing of individual privacy interests against the

public interest. See U.S. Dep’t of Justice v. Reporters Comm.

for Freedom of the Press,

(1989). If an

individual’s privacy interest is implicated, then a FOIA

requestor must show that “(1) the public interest is a

significant one; and (2) the information is likely to advance

that interest.” Harrison v. EOUSA,

(D.D.C. 2005), citing NAVA v. Favish,

(2003).

In this case, the ACLU argues that the individual

privacy interests implicated by the disclosures it seeks are

minimal. Most of the criminal cases were matters of public

record, it argues, and most of the defendants have already been

publicly linked to criminal activity, diminishing the need to

protect them from further disclosure. The ACLU points to the

cases of some highly-publicized terrorist suspects to demonstrate

that the government’s argument does not pass “the laugh test.”

The ACLU also argues that some criminal defendants may actually

2 Exemption 7(C)also requires that withheld records be “compiled for law enforcement purposes.” The ACLU concedes that the records at issue meet that requirement. Exemption 6 pertains to “personnel and medical files.”

- 3 - prefer that the information be released, because it may enable

them to vindicate Fourth Amendment protections.

Criminal defendants are not without privacy rights in

the FOIA context, see Judicial Watch v. DOJ,

(D.C. Cir. 2004), and the public nature of court records does not

eliminate their interest in avoiding further disclosure, see

Harrison,

; see also Reporters Committee,

. The ACLU correctly points out, however, that

Exemption 7(C) offers its greatest protection when disclosure

would “involve the privacy interests of individuals who were

uncharged suspects of investigations or who were merely mentioned

in records.” The government does cite several decisions of other

judges of this court finding that Exemption 7(C) protected

criminal case names and numbers from disclosure, [#32] at 2-5,

but each of those decisions is distinguishable for one reason or

another. For example, as the ACLU observes, Judge Lamberth’s

decision in Harrison v. Executive Office for United States

Attorneys,

(D.D.C. 2005), “may have been

motivated by the identity of the requester [an inmate] and the

creepy nature of his request [for every case prosecuted by a

certain magistrate judge when he was a prosecutor].”

In striking the appropriate balance in this case, I

will allocate a greater privacy interest to persons who were

acquitted, or whose cases were dismissed or sealed (and remain

- 4 - under seal), and a considerably lesser privacy interest to

persons who were convicted, or who entered public guilty pleas.

The public’s interest in the release of this

information, the ACLU asserts, is in “understanding to what

extent and to what end the government is engaged in cell phone

tracking, to what extent these surveillance activities lead to

prosecutions, and to what extent these prosecutions are

successful.” [#29] at p. 17. The argument is that cell phone

usage is ubiquitous (or, perhaps, pandemic), and that the public

has the right to examine the government’s use of cell phone

tracking. [#35] at p. 7. It may be true that the public has a

substantial interest in the subject of cell phone tracking – in

knowing what Big Brother is “up to” – but the ACLU provides only

a meager explanation of just how the release of case names and

docket numbers will advance that interest. It explains only that

“[c]urrently the public has no idea who is prosecuted as a result

of cell phone tracking, or for what kinds of crimes. The case

names and docket numbers are necessary in order to be able to see

to what uses this surveillance is being put,” [#29] at p. 17-18,

and “[b]ecause the vast majority of applications and orders

remain under seal and published decisions exist in only a handful

of districts, plaintiffs need the requested information to access

court proceedings,” id. at 18 (emphasis added). In other words

(not the ACLU’s words), having case names and numbers would make

- 5 - it easier to find and pursue the juiciest cases - the ones that

would best illustrate the Fourth Amendment argument the ACLU is

apparently developing. The easier it becomes to pursue such

follow-up investigations, however, the more likely it is that

unwarranted invasions of personal privacy will occur.

Weighing the privacy interests of individuals who have

been criminally prosecuted against the public interest that could

be served by the disclosure of the case names and numbers the

ACLU seeks, I find that the public interest in “what the

government is up to” outweighs the privacy interests of persons

who have been convicted of crimes or have entered public guilty

pleas; but that the privacy interests of persons who have been

acquitted, or whose cases have been sealed and remain under seal,

or whose charges have been dismissed, outweigh the public

interest in disclosure of their names and case numbers.

2. Case names and docket numbers in applications

The ACLU also seeks the case names and docket numbers

included in applications requesting use of cell phone records,

which the government has redacted, also under Exemptions 6 and

7(C). The ACLU concedes that case names are exempt from

disclosure if they would lead to release of personally

identifiable information about surveillance targets who have yet

to be prosecuted. But, the government contends, after case names

are redacted, nothing would be left but variants of the phrase

- 6 - “In re: Application for Cell Site Authority.” I will not order

the government to make such a meaningless production. As for

docket numbers on Documents 22, 27 and 67: the ACLU assumes that

the cases represented by those documents are sealed and argues

that release of their docket numbers would not reveal any

identifying information. Disclosure of docket numbers could

reveal surveillance targets yet to be prosecuted, however –

either because the cases are not actually sealed, or because the

ACLU’s promised motion to unseal could be successful. The

redactions from the applications pursuant to Exemption 7(C) are

proper.

3. Application templates

The government has produced templates used to make

applications for cell phone tracking authority but has redacted

them pursuant to Exemptions 2 and 7(E). Some of the redactions

withhold material that is claimed to be “high 2" exempt, a

category that covers “predominantly internal” documents whose

disclosure would “significantly risk[] circumvention of agency

regulations or statutes.” See Crooker v. Bureau of Alcohol,

Tobacco, & Firearms,

(D.C. Cir. 1981). The

other redactions invoke Exemption 7(E), which allows the

government to withhold documents that are compiled for law

enforcement purposes and that “would disclose techniques and

procedures for law enforcement investigations or prosecutions, or

- 7 - would disclose guidelines for law enforcement investigations or

prosecutions if such disclosure could reasonably be expected to

risk circumvention of law.”

(b)(7)(E).

The ACLU attacks the government’s Vaughn index as

conclusory and requests in camera review of the documents.

Although I agree that in camera review of twelve documents would

not be unduly burdensome, I find the government’s Vaughn

descriptions to be an adequate basis for my decision.

Documents 2, 69, and 71 are described as guides or

samples that AUSAs use in drafting applications, orders and

declarations to obtain authorization for cell phone monitoring.

These documents are not final applications or orders, so it is

quite evident that they are “predominantly internal.” And, the

government provides adequate affidavit support for its argument

that release of the redacted information would risk circumvention

of the law because it would reveal information about how co-

conspirators can be identified, the conditions under which cell

phone tracking would not work, and details about the conditions

necessary for cell phone tracking to be effective – precisely the

kind of information that Exemption 2 is intended to cover. Second

- 8 - Declaration of Karen M. Finnegan,[#32-1] at ¶ 11; Crooker,

.

The remaining template redactions3 are said to contain

information on law enforcement techniques that are not readily

available to the public, so that redaction is permissible under

Exemption 7(E). As the government correctly points out, the

first prong of Exemption 7(E) permits withholding of information

that would disclose techniques and procedures for law enforcement

investigations or prosecutions without a showing risk of

circumvention.

(b)(7)(E); see also Peter S.

Herrick’s Customer & Int’l Trade Newsletter v. U.S. Customs &

Border Prot.,

, at *7 (D.D.C. June 30, 2006).4

The redacted information reveals limitations of the law

enforcement techniques, details about what the cell phone records

can capture, and uses of the records that are not obvious or

3 Portions of Documents 2-3, 26-29, 32-34, and 68-71. 4 The ACLU argues that PHE, Inc. V. DOJ,

(D.C. Cir. 1993) requires a showing of risk of circumvention to apply Exemption 7(E). I agree with the government’s reading of the case, as the records at issue in PHE were primarily guidelines and fell under the second prong of the exemption.

- 9 - well-known. [#32-1] at ¶ 15. The government has appropriately

applied Exemption 7(E).

4. Adequacy of the searches

The ACLU requests that the government conduct further

searches for final versions of 13 draft documents.5 The original

request sought “Policies, procedures, and practices followed to

obtain mobile phone location information for law enforcement

purposes.” [#29] at p. 9. That language does not cover specific

applications or orders for particular cases, and the government

reasonably so construed it.

Did the defendant make “a good faith effort to conduct

a search for the requested records, using methods which can be

reasonably expected to produce the information requested”?

Nation Magazine v. U.S. Customs Service,

(D.C.

Cir. 1995). The affidavit of Karen Finnegan that describes the

search adequately demonstrates that the search was reasonable.

[#32-1] at ¶ 5. The fact that the search did not yield final

versions of certain draft documents does not render the search

itself inadequate. Final versions may not exist, and, even if

they do, a search need not yield every document to be adequate.

5 The ACLU also sought the “Hodor” and “Kischer” declarations, which are components of the application package the government usually submits when it seeks cell phone tracking authority. Since the parties completed their summary judgment briefing, the government has produced both documents, to the ACLU’s satisfaction.

- 10 - Nation Magazine,

. The ACLU erroneously

argues that it was the government’s burden to show that a more

extensive search would be unduly burdensome. That is not the

rule where, as here, the government has conducted a search that

fully addresses the scope of the request. See

.

An appropriate order accompanies this memorandum.

JAMES ROBERTSON United States District Judge

- 11 -