Circuit Court Upholds Secrecy Of FBI's Use of Ethnic Mapping

, New Jersey Law Journal

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But Circuit Judges D. Brooks Smith, Dolores Sloviter and Jane Roth said that “common sense itself suggests that different data related to different ethnic populations in different cities used in completely different FBI investigations can vary greatly in sensitivity.”

The appeals court further disagreed with the ACLU-NJ’s assertion that releasing the “limited public source information” it seeks cannot be expected to tip off targets or permit them to circumvent investigations.

The ACLU-NJ said the demographic data is public information to begin with, but “this argument misses the obvious point that while the demographic data may be public, its use by the FBI is certainly not,” Smith wrote for the panel.

The harm in exposure lies in “revealing, indirectly, the FBI’s targeting preferences and investigative techniques, not in revealing demographic information that is already available to the public,” he said.

The ACLU-NJ sought to require the government to issue a public affidavit explaining in detail its reasons for withholding documents. But the appeals court found no legal authority compelling such a procedure and said the in camera review adopted by Salas was explicitly contemplated in the FOIA.

Nustrat Choudhury, staff attorney for the ACLU National Security Project, said in a statement, “We are deeply disappointed by this decision, which denies the public’s right to know which New Jersey communities the FBI is spying on through its secretive racial mapping intelligence program.

“Today’s decision also has far-reaching negative consequences because the court has permitted district courts to use a secret and one-sided process to adjudicate potential FBI abuses of its authority to keep information from the public,” said Choudhury, whose co-counsel was ACLU-NJ staff attorney Hina Shamsi.

The government was represented by Catherine Dorsey of the U.S. Department of Justice in Washington, D.C. A spokeswoman, Allison Price, says the department declines to comment.

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