SECRECY NEWS
from the FAS Project on Government Secrecy
Volume 2011, Issue No. 112
December 5, 2011

Secrecy News Blog: http://www.fas.org/blog/secrecy/

TRACKING CELL PHONES AND VEHICLES: THE LEGAL CONTEXT

A new report from the Congressional Research Service explores ongoing legal debates over the tracking of private cell phones and vehicles by law enforcement agencies.

"It is undeniable that... advances in technology threaten to diminish privacy," the CRS report says. "Law enforcement's use of cell phones and GPS devices to track an individual's movements brings into sharp relief the challenge of reconciling technology, privacy, and law."

The 22 page CRS report provides a survey of relevant Fourth Amendment law, federal electronic surveillance statutes and case law, pending GPS-vehicle tracking cases, and electronic surveillance legislation that is before Congress.

"The primary debate surrounding cell phone and GPS tracking is not whether they are permitted by statute but rather what legal standard should apply: probable cause, reasonable suspicion, or something less," the report says.

A copy of the CRS report was obtained by Secrecy News. See "Governmental Tracking of Cell Phones and Vehicles: The Confluence of Privacy, Technology, and Law," December 1, 2011:

LEGISLATIVE SECRECY DELINES, BUT ENDURES

Congress is the most transparent and publicly accessible branch of government, and yet there are many aspects of the legislative process that are opaque and off-limits to public awareness, according to a disquisition on legislative secrecy from the Congressional Research Service.

"Compared with the White House, the executive branch, and the Supreme Court, the U.S. Congress is the most transparent national governmental institution," the CRS report said. "Yet the congressional process is replete with activities and actions that are private and not observable by the public."

"Both secrecy and transparency suffuse the lawmaking process," the report said. "Legislative secrecy has clearly declined over the decades, but it has been part of the policymaking process from Congress's very beginning, and it remains an integral aspect of the lawmaking process."

"Today, Congress operates largely in the sunshine. Ironically, studies have shown that the more open Congress has become, the less the citizenry like what they see, hear, and read about the lawmaking process."

The report describes the motivations and occasions for legislative secrecy, which it says can facilitate legislative negotiations, promote candor, and foster free deliberation. The CRS report does not mention the congressional policy of denying direct public access to CRS reports, or the persistent public efforts to defeat that policy.

See "Congressional Lawmaking: A Perspective On Secrecy and Transparency," November 30, 2011:

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Secrecy News is written by Steven Aftergood and published by the Federation of American Scientists.

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