This week brought fresh revelations about the National Security Agency's sloppy and invasive collection of phone data on Americans and others, as reported first by The Washington Post. In another realm of surveillance — the government's broad use of location tracking devices — the Justice Department was in federal court on Thursday defending its refusal to release memos containing information about its policies governing the use of GPS and other potentially invasive technologies.
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The American Civil Liberties Union had brought the lawsuit to demand that the department make the memos public. The documents were prepared after a 2012 Supreme Court ruling, United States v. Jones, which held that placement of a hidden tracking device on a suspect's car constitutes a "search" under the Fourth Amendment.
That case left lots of questions unanswered, including whether GPS tracking always requires a warrant based on probable cause, and how the Fourth Amendment applies to tracking someone 24/7 with cellphone location technology. After the decision was released, the F.B.I.'s general counsel, Andrew Weissmann, mentioned in a public talk that the government was issuing memos containing official guidance for federal agents and prosecutors on when they can use tracking technology and how the Jones decision applies to other types of techniques, beyond GPS.
The public has a right to know the government's policies on these matters. There is very good reason to be concerned about the government's interpretation of its police powers, especially given the Obama administration's insensitivity to privacy in its mass collection of phone data in the national security sphere.
When the A.C.L.U. filed a request for the memos under the Freedom of Information Act, the Justice Department responded by handing over copies with the text nearly entirely blanked out, prompting the lawsuit. The Justice Department claims that the memos were prepared anticipating litigation and are exempt from disclosure because they are a lawyer's work product. But to the extent Mr. Weissmann accurately represented the memos, they also amount to statements of official policy, not merely exchanges by lawyers on legal theories, which the work-product exception is meant to protect.
Our strong hunch is that there is material in the memos that can and should be revealed without harm to law enforcement or the appropriate discussion of confidential legal strategies. At Thursday's hearing, Judge William Pauley III said he would personally review the documents before deciding whether they should be released.
It is distressing that the administration, which claims to welcome a debate over the government's surveillance practices, time and again refuses to be transparent about those practices. Instead of awaiting a court order, the administration should release the tracking memos on its own.
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