DOJ Is Illegally Withholding Records About Phone Location Data Collection, Lawsuit Claims

A view of a cellular communication tower on March 6, 2014 in Oakland, California.
Photo: Justin Sullivan / Getty

One of the nation’s leading privacy groups is challenging the Justice Department in court after it refused to turn over records concerning the collection of cell-site location information, which had been routinely obtained from phone companies without a warrant prior to a landmark U.S. Supreme Court ruling last year.

The Electronic Information Privacy Center (EPIC) has charged the agency with engaging in a “pattern and practice” of violating the Freedom of Information Act (FOIA), the federal law which allows Americans and non-citizens to request access to U.S. government records not commonly made available to the public.

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EPIC has sought access to records detailing DOJ’s collection of cell-site location information (CSLI), which, prior to a decision in Carpenter v. United States last year, police routinely obtained without a warrant.

Cellphones, once active, relay messages back and forth to cell towers several times a minute. This ensures that the phone is always connected to the nearest cell tower. The nearest cell tower will provide the best signal at the lowest cost to the phone’s battery. It also ensures that incoming calls are relayed to the correct cell tower and can be received by the user.

As a byproduct, this feature also generates location records, which the law requires phone companies to collect. Prior to Carpenter, police could obtain these records using what’s called a 2703(d) order—referring to Section 2703(d) of the Stored Communications Act. To wit, the orders could be obtained if police had “reasonable grounds to believe” the records “are relevant and material to an ongoing criminal investigation,” an evidentiary threshold far below what’s required to obtain a warrant, i.e., probable cause.

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In Carpenter, the Supreme Court ruled that CSLI is protected by the Fourth Amendment, and thus a warrant is required to obtain them.

In response to the ruling, EPIC has sought access to records related to DOJ’s collection of cell-site location information in 2016 and 2017. Last year, it filed a lawsuit in the D.C. circuit claiming DOJ has improperly handled the requests and failed to turn over the applicable documents.

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In an amended complaint this month, EPIC’s attorneys wrote that DOJ has never released any comprehensive reports concerning its collection of CSLI, noting that collection of data under the Wiretap Act is conversely subject to detailed public reporting requirements. EPIC explains that this is one of the reasons it is attempting to acquire the records.

The group now contends, citing an exhaustive, year-long process to obtain the records, in which DOJ has failed to produce any, that the agency has demonstrated a pattern of violating the law.

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A “pattern and practice” case is brought when a group or person seeking access to public documents believes there’s sufficient evidence to show a federal agency has a track record of violating the Freedom of Information Act and is likely to continue doing so. It asks a judge to issue an injunction requiring the agency to respond to future requests in a timely manner.

EPIC’s complaint specifically seeks to prevent the agency from, in its words, “continuing to apply its unlawful policy, pattern or practice of refusing to search for responsive records.”

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Gizmodo has reached out to the Justice Department for comment. We’ll update if we hear back.

You can view a copy of EPIC’s amended complaint here.

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Dell Cameron

Privacy, security, tech policy | Got a tip? Email: dell@gizmodo.com | Send me encrypted texts using Signal: (202)556-0846

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