The right of reporters' to control what information the government keeps on file about them got a boost this week when the 9th U.S. Circuit Court of Appeals ruled the feds can keep memos only if they are part of an ongoing investigation.
The dispute focused on Eric Anthony Garris' dispute with the FBI.
The Electronic Frontier Foundation said the court vindicated "the right to be free from government surveillance."
The ruling ordered the FBI to expunge a 2004 memo it created that documented the political expression of antiwar.com and Garris. But it allowed the agency to keep another memo because it was under the protection of an "ongoing investigation."
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At issue was the Privacy Act of 1974, which "includes a provision prohibiting federal agencies from maintaining records on individuals that document their First Amendment activity," EFF said.
"EFF filed a friend-of-the-court brief in the case that called on the court to robustly enforce the Privacy Act’s protections, particularly given technological changes in the past half century that have vastly increased the power of government to gather, store, and retrieve information about the expression and associations of members of the public. For example, law enforcement can use the Internet to collect and store vast amounts of information about individuals and their First Amendment activities," the privacy group explained.
The law was created after several issues came to light, such as the government's tracking of Martin Luther King Jr. and spy operations on political enemies.
"The law established rules about what types of information the government can collect and keep about people. The act gives individuals the right to access records the government has on them and change or even delete that information. One of the most protective provisions is a prohibition against maintaining records of First Amendment activity. Law enforcement was given a narrow exception for records that are 'pertinent to and within the scope of an authorized law enforcement purposes,'" EFF said.
There were two memos at issue, and the 9th Circuit said the government could not keep one because "the FBI did not have an authorized law enforcement purpose for keeping the memo."
The court said, "If the agency does not have a sufficient current 'law enforcement activity' to which the record is pertinent, the agency is in violation of the Privacy Act if it keeps the record in its files."
The other memo was linked to ongoing work, so the FBI is allowed it keep it.
"The decision is a big win in the fight against ever-expanding federal law enforcement surveillance because it provides a meaningful mechanism for individuals to force the deletion of records that document their protected First Amendment activities," EFF said.
The court said the dispute over whether the Privacy Act requires maintained records to be pertinent to an ongoing law enforcement activity was "one of first impression in this court."
In this case, the FBI did not show that the first memo was in that category but did for the other.