On Friday, the ACLU, the ACLU of the National Capital Area, and the Electronic Frontier Foundation filed our opening brief in the U.S. Court of Appeals for the District of Columbia Circuit in the lawsuit to enforce our Freedom of Information Act (FOIA) requests regarding the government’s warrantless cell phone tracking practice.
Warrantless cell phone tracking is the practice of obtaining a person's cell phone location data from carriers, in real-time/historically, without a warrant to aid in law enforcement investigations. We found out from a smattering of published cases in the district courts and from the documents released as a result of this FOIA request that prosecutors around the country are routinely accessing this location and movement information, including precise GPS data, by merely showing a court that the information sought is “relevant and material to an ongoing criminal investigation” — a standard much lower than the probable cause required for a warrant. We believe this violates federal surveillance laws and the Fourth Amendment (PDF).
We filed our FOIA requests on November 9, 2007, in order to learn more about the scope and effectiveness of this unlawful practice, which is shrouded in secrecy because most applications for cell phone tracking are sealed. Pursuant to our requests and the subsequent lawsuit to enforce them filed on July 1, 2008, the government produced some responsive documents, including template cell phone tracking applications and training materials, which are available here.
In March, the district court further ordered the government to disclose case names, case numbers, and court of all criminal prosecutions in which it engaged in warrantless cell phone tracking and the defendant was convicted. The remaining documents that we’ve seeking on appeal are: case names, case numbers, and court of all criminal prosecutions in which it engaged in warrantless cell phone tracking and the defendant was acquitted, the charges were dismissed, or the case remains under seal; and case names and numbers on applications for cell phone tracking. The government has invoked the privacy exemptions to the FOIA to withhold these documents.
This information will help us determine, among other things, what crimes people subjected to warrantless cell phone tracking are alleged to have committed; whether prosecutions brought against people who have been tracked are successful; whether defendants ever learned that they were tracked without a warrant; and how the government used the cell phone location information as evidence. The Freedom of Information Act exists to oblige the government to disclose precisely this type of information, so that the public can learn “what the Government is up to.”
Because the public interest in learning about the warrantless cell phone tracking practice outweighs people’s privacy interests in docket information (like case names and numbers) that are already publicly available, we hope that the court of appeals will agree with us and compel the government to release the information that we’re seeking.
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Press ReleaseDec 2024
Free Speech
National Security
ACLU and Partners Urge Supreme Court to Block TikTok BanACLU and Partners Urge Supreme Court to Block TikTok Ban
WASHINGTON — Today, the American Civil Liberties Union, the Electronic Frontier Foundation (EFF), and the Knight First Amendment Institute at Columbia University filed an amicus brief urging the Supreme Court to block the enforcement of a law that would effectively ban people in America from using TikTok as soon as January 19, 2025. Earlier this month, the U.S. Court of Appeals for the D.C. Circuit rejected TikTok’s challenge to the law. TikTok has asked the Supreme Court for a temporary injunction to prevent the app from being banned while the court considers whether to take the case, saying that unless the justices intervene, the law will “shutter one of America’s most popular speech platforms the day before a presidential inauguration.” “The Constitution imposes an extraordinarily high bar on this kind of mass censorship,”said Patrick Toomey, deputy director of ACLU’s National Security Project. “The Supreme Court should take up this important case and protect the rights of millions of Americans to freely express themselves and engage with others around the world.” The brief argues that the D.C. Circuit failed to fully address the law’s profound implications for the First Amendment rights of the 170 million Americans who use TikTok. While the lower court’s decision correctly recognized that the statute triggers First Amendment scrutiny, it barely addressed users’ First Amendment interests in speaking, sharing, and receiving information on the platform. The court also perplexingly attempted to cast the government’s ban on TikTok as a vindication of users’ First Amendment rights, which it is not. The rights groups also explain that the law was intended to suppress certain content and viewpoints that many legislators believe could be amplified on TikTok, including the risk of foreign “propaganda.” But under the First Amendment, the government must meet a very high bar to restrict speech based on concerns about its “motivating ideology” or “perspective,” and the government has not come close to meeting that bar here. “The government should not be able to restrict speech, especially to the extent here, based on guessing about the mere possibility of uncertain future harm,” said David Greene, civil liberties director at EFF. “The Supreme Court should put the TikTok ban on hold while it considers the DC Circuit’s erroneous ruling.” Finally, the brief underscores that the government can’t impose this type of sweeping ban unless it’s necessary to prevent extremely serious and imminent harm to national security. But the government has not provided evidence of impending harm, or evidence that banning TikTok is the only available way to address its concerns. As the brief explains, the D.C. Circuit improperly treated the government’s invocation of “national security” as a trump card and failed to hold the government to its burden. “Restricting citizens’ access to foreign media is a practice that has long been associated with repressive regimes, and we should be very wary of letting the practice take root here,” said Jameel Jaffer, executive director at the Knight First Amendment Institute at Columbia University. “It would do lasting damage to the First Amendment and our democracy if the Supreme Court let this ban go into effect even temporarily.” You can find the brief online here: https://www.supremecourt.gov/DocketPDF/24/24A587/335380/20241217144322392_24A587%20TikTok%20v%20Garland%20Amicus%20Brief%20pdfa.pdf -
MississippiJul 2024
Free Speech
Privacy & Technology
NetChoice v. FitchNetChoice v. Fitch
Whether a law that mandates age verification for all users of social media services violates the First Amendment. -
News & CommentaryDec 2024
Free Speech
Can you define pornography? Neither can the government.Can you define pornography? Neither can the government.
We break down the absurd-but-true history of trying to censor sexual speech under the guise of "keeping kids safe." -
Minnesota Supreme CourtNov 2024
Free Speech
Energy Transfer LP v. Greenpeace International, Unicorn RiotEnergy Transfer LP v. Greenpeace International, Unicorn Riot
This case in the Minnesota Supreme Court asks whether the MFFIA's protections apply to newsgatherers even if they are alleged to have engaged in trespassing while newsgathering. The ACLU’s State Supreme Court Initiative, alongside the ACLU of Minnesota and law firm Biersdorf & Associations, filed a brief representing Unicorn Riot, a media organization that covered protests of the Dakota Access Pipeline. The brief argues that MFFIA and constitutional reporter’s privileges, under both the U.S. and Minnesota constitutions, protect Unicorn Riot from having to comply with Energy Transfer’s subpoenas.