A federal court has ruled that the Justice Department may keep secret two key memos, which the American Civil Liberties Union argues show how the government views when it can and cannot legally track Americans with GPS tracking devices.

At a symposium hosted by the University of San Francisco Law Review on February 24, 2012, FBI General Counsel Andrew Weissmann responded to a question by disclosing that, in the aftermath of the US v. Jones decision by the Supreme Court, the Justice Department had drafted memos.

US v. Jones was a unanimous Supreme Court ruling, where the court found law enforcement must get a warrant when using GPS tracking devices.

The memos discussed when the government could use GPS tracking devices. This memo dealt with arguments to be made if the use of devices were challenged. And a second memo was mentioned, which included guidance on what the Supreme Court’s decision meant for “other types of techniques beyond GPS.”

After the symposium, the memos were distributed to “all federal prosecutors.” One was titled, “Guidance Regarding the Application of United States v. Jones to GPS Tracking Devices,” and is the “February memo.” The other was, “Guidance Regarding the Application of United States v. Jones (2012) to Additional Investigative Techniques,” and is known as the “July memo.” The July memo went to “criminal chiefs and appellate chiefs.

The two memos had “all-caps boldface warnings on their front pages cautioning they constitute attorney work product and should not be disseminated outside DOJ,” according to the decision by the US District Court of the Southern District of New York. “The July memorandum [was] even more restrictive, instructing its recipients that it should be distributed within their offices only when relevant to an investigation or case.”

Judge William Pauley, the same judge who ruled months ago that the National Security Agency’s bulk collection of phone metadata was constitutional, found the memos discussed “how to defend the government against accusations of unlawful searches or seizures.” They related to “legal arguments prosecutors should make when criminal defendants claim the government violated the Fourth Amendment and the potential weakness of those arguments.”

In this respect, they were privileged and intended for “foreseeable litigation.” This meant they could be kept secret.

The judge decided that the July memo’s content, if disclosed, could “allow individuals to break the law and evade detection by federal law enforcement.” The Justice Department did not have to release it.

“The DOJ’s interpretation of the Supreme Court’s decision in Jones has no legal effect; the results of the DOJ’s arguments will be borne out in the courts,” the court concluded.

The American Civil Liberties Union (ACLU), which filed the lawsuit requesting disclosure of the memos, argued that “work-product privilege” only applied when a document was “created in response to a specific set of facts and actual claims.” Since the memos constituted an “objective analysis of governing law,” they should be public information.

Previously, the two memos had been provided to the ACLU as a result of Freedom of Information Act request, and the pages were filled with black ink. All the information of public interest had been redacted.

A blog post by Brian Hauss, an ACLU Speech, Privacy and Technology Project Legal Fellow, stated that the ACLU hoped the district court was “correct in predicting that the government’s surveillance policies will eventually see the light of day in an open judicial forum.”

“While we wait for the courts to weigh in, the political branches will be the ones who determine how much privacy we can expect in our movements over the course of weeks or months — movements that can reveal a surprisingly intimate picture of our personal and professional lives. That is why these memos are so important. And yet we know they exist only because FBI General Counsel Andrew Weissmann happened to mention them in a law school talk that ended up on YouTube (you can watch it here).”

The post noted that both Senator Ron Wyden of Oregon and Representative Jason Chaffetz of Utah had requested that Attorney General Eric Holder release these memos. The New York Times Editorial Board also “called on the Justice Department to release the location tracking memos to the public of its own volition” so that a public debate on government surveillance could take place.

And, as the ACLU noted, these memos only deal with what GPS tracking techniques can legally be used. There is no law that requires a warrant for GPS tracking devices.

There are multiple cases being brought which challenge warrantless GPS searches (like this case decided last October), but a gray area for law enforcement exists giving authorities plenty of room to undermine the Fourth Amendment and possibly even get away with abuses.