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Vt. judge urged to shed light on use of cellphone tracking data

ACLU seeks access to police records

By John Curran
Associated Press / October 19, 2010

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MONTPELIER — A Vermont judge heard arguments but didn’t rule yesterday on a lawsuit aimed at forcing the state to reveal whether and how its criminal investigators use cellphone tracking technology to keep tabs on people.

The ACLU of Vermont sued the state in March after filing public records requests that sought information on the state attorney general’s use of data from cellphone service providers to pinpoint the locations of people.

The state contends that the information is exempt from public records statutes because it involves criminal investigations, which were specifically exempted from disclosure when the Legislature adopted the Access to Public Records Act.

After the state denied the ACLU’s records requests, the ACLU filed a civil suit asking a judge to compel the release of information about instances in the previous two years in which the attorney general’s office had sought mobile telephone location information from any provider.

At issue in the suit is not the practice itself, but whether the attorney general’s office acted lawfully in denying the public records request that sought details of its use.

“In a way, the ACLU is bringing a collateral attack on a whole bunch of proceedings without being a part of any of those proceedings,’’ said Assistant Attorney General Eve Jacobs-Carnahan, who argued the state’s case. “And it’s trying to get into that through a public records request, and that’s not appropriate.’’

Washington County Superior Court Judge Geoffrey Crawford, who presided at yesterday’s hearing, said that in a sense, the ACLU had already won by virtue of his previous decision to unseal a document submitted by the state in which it said it had made such requests four times.

The requests, which spanned four days last January, had to do with an Orleans County case or cases, but the parties to them weren’t named in the document, nor was it clear whether they were criminal or civil.

“So we know something we didn’t know six months ago when we filed this case, and that is that yes, the attorney general is asking for information from cell companies about data that shows where any of us is at any one time if we had our cellphones on,’’ said Allen Gilbert, executive director of the ACLU’s Vermont chapter.

“The next question, probably, is how widespread a practice is this? We only asked the AG. We only asked for a limited amount of time. We could ask the same question of police agencies or state’s attorneys around the state,’’ Gilbert said.

Crawford didn’t rule on the state’s request to dismiss the suit, or say when he would.

What the ACLU wants, according to Gilbert, is a ruling that affirms the public’s right to know what techniques law enforcement officials use to investigate crime.

But revealing when and how cellphone tracking is used in an investigation would have widespread ramifications in the criminal process, according to Jacobs-Carnahan.

“The Legislature has said that it’s going to protect the investigatory process, and you’re trying to break it up into little pieces and saying, ‘Oh, it would be nice to have this piece of information or that piece of information.’ But once you start going down that road, you’re going to get into all the questions of how you decide which ones are appropriate to disclose and which aren’t.’’

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