This FOIA case sought records related to the government’s warrantless use of cell phones as real-time tracking devices in criminal investigations. Some records were produced without the need for a court ruling, but others were withheld. In 2011, a federal district court ordered the Department of Justice to produce the case names and docket numbers of criminal cases in which cell phones had been used as tracking devices and in which the defendant was convicted. But the court refused to order the production of such information for cases in which indictments did not lead to public convictions.

Both sides appealed, and in 2012 the court of appeals agreed with us that the public interest in shedding light on the scope and effectiveness of cell phone tracking as a law enforcement tool outweighed the minimal privacy interest that convicted criminal defendants had in the already-public fact that they had been indicted.

Because the record did not reflect whether there were any cases in which the defendants had not been convicted, the court of appeals vacated the district court’s ruling denying our request for docket information about such cases and directed the district court to determine whether there were any before reconsidering its decision about whether they should also be released.

The government disclosed that there were six such cases. In February 2013, the district court again ruled that the identity of those cases should not be disclosed, and we appealed. In May 2014, the D.C. Circuit ruled that the privacy interests of indicted but unconvicted defendants outweigh the public interest in this information. Our petition for rehearing the issue before the entire panel of judges was denied.

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