(Photo: Joe Ravi via Wikimedia Commons.)
The public doesn’t have a right to information on criminal cases involving warrantless cellphone tracking if the defendant was acquitted or had their case dismissed, a federal appeals court in Washington ruled Friday.
A divided three-judge panel of the U.S. Court of Appeals for the D.C. Circuit found the defendants’ privacy rights outweighed the public’s interest in understanding the scope of warrantless cellphone tracking by the government.
The American Civil Liberties Union sued the U.S. Department of Justice for case names and docket numbers of prosecutions where the government got a court order, but not a warrant, to obtain cellphone data.
The court previously ruled in 2011 that the Justice Department was required to turn over information on warrantless tracking in in cases in which a defendant was found guilty. The public’s interest in understanding how law enforcement agencies were using warrantless cellphone tracking outweighed the defendants’ privacy interest, the court said.
The ruling left a handful of cases where warrantless tracking took place but the defendant was acquitted or the charges were dismissed. In its 2011 decision, the D.C. Circuit didn’t decide whether information on those cases should be public.
Judge David Tatel, in an opinion joined by Judge Brett Kavanaugh, ruled Friday that the Justice Department overstated the privacy interests of the defendants still at issue by comparing them to individuals who were under investigation but never charged. However, the court still found that their privacy rights were much stronger than those found guilty.
“Indeed, the government, having brought the full force of its prosecutorial power to bear against individuals it ultimately failed to prove actually committed crimes, has a special responsibility—a responsibility it is fulfilling here—to protect such individuals from further public scrutiny,” Tatel wrote.
Tatel also wrote a separate opinion explaining why the government’s previous release of information about defendants who were found guilty “substantially reduced the value” of the information the ACLU wanted.
Judge Janice Rogers Brown wrote in dissent that she sympathized with the majority’s “protective instincts,” but disagreed with their conclusion.
“Redemption is still possible, but in the modern world, the right to be left alone, once forfeited, is gone for good,” she wrote. “An individual who is indicted and tried has no privacy interest that can protect the public record of prosecution from disclosure—even if the ultimate outcome was acquittal or dismissal.”
The court records for the defendants at issue were already in the public domain, she wrote. Their privacy interests were “only marginally greater” than the defendants who were convicted, she said, so the balance still tilted in favor of the public’s interest in understanding the use of warrantless cell phone tracking.
Arthur Spitzer, legal director of the American Civil Liberties Union of the Nation’s Capital, argued the case. He said Friday that it was too soon to say if they would ask a full sitting of the court to reconsider.
“We think the idea that someone who was publicly indicted by the federal government can somehow keep that information private is just unrealistic in today’s Internet world,” Spitzer said. “We’re mystified at what privacy interest the government thinks it’s protecting.”
A spokeswoman for the Justice Department was not immediately available for comment.
Contact Zoe Tillman at email@example.com. On Twitter: @zoetillman.