ACLU Suit Shows the DOJ Gathered Location Data Without Probable Cause

After three years of litigation, we’ve finally settled a portion of one of our long-running Freedom of Information Act suits against the federal government for information about its location tracking practices.  A person’s digital location information reveals detailed, private information that the government should only be able to get through a warrant based on probable cause.  As part of this settlement, the government provided us with information about the types of court orders it obtains to get location information. 

In particular, we learned that from 2008 to 2012, the U.S. Attorney’s Office for the Northern District of California overwhelmingly relied on so-called “hybrid orders” to obtain location information. Unlike more privacy-protective warrants that require probable cause, hybrid orders have a lower burden of proof.  In other words, with hybrid orders, the government doesn’t need to show an especially good reason to snoop into your location history.  

This is an important revelation. Two judges in the Northern District held this year that government requests for a common type of location information, known as cell site location information, presumptively require a Fourth Amendment warrant based on probable cause.  It’s fair to assume that most of the location tracking orders in our case also involve cell site location information, since it’s one of the most frequently used types of location tracking information. 

The information from our FOIA suit shows that the U.S. Attorney’s Office was for years obtaining location information in a manner that two judges of this district have now held to be inconsistent with the Fourth Amendment.

It’s disappointing that we had to litigate with the government for three years to get basic information about the type of court authorization it uses to seek location tracking information. But the public has a right to know what its government is doing when it comes to intrusive surveillance technology.

Linda Lye is a Senior Staff Attorney with the ACLU of Northern California.