But since then, government agencies have devised a new surveillance method: instead of getting warrants to force companies to provide data, they simply purchase the information from brokers. Call it entrepreneurial innovation in the market for tyranny.
by Ken Silva
When the Supreme Court ruled in 2018 that law enforcement agencies need warrants before they can request geolocation data from cell phone companies, civil liberties advocates touted the judgment as a major win for privacy.
But since then, government agencies have devised a new surveillance method: instead of getting warrants to force companies to provide data, they simply purchase the information from brokers. Call it entrepreneurial innovation in the market for tyranny.
The scope of this activity has been slowly revealed over the last year, beginning with a February 2020 Wall Street Journal article, which reported that the Department of Homeland Security (DHS) has “bought access to a commercial database that maps the movements of millions of cellphones in American and is using it for immigration and border enforcement.” Later reports revealed that Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE) purchase similar data.
Had the world not essentially collapsed about a month later, this might have been big news. Alas, government’s data purchases have gone largely unpublicized in the midst of pandemics, riots, elections, and so on.
Even though geolocation data purchases are a norm in government, there are some public officials who agree with civil libertarians that the programs are unconstitutional. For example, in a memo made public this week, the inspector general for the Department of Treasury criticized the IRS for purchasing location information.
According to the IG’s memo, the IRS subscribed to a geolocation database provided by the data broker Venntel. The inspector general shared his view that the IRS program likely violated the Fourth Amendment and the precedent set by the Supreme Court in Carpenter v. US.
However, the IG’s opinion is far from government consensus. In fact, the IG’s memo notes that the IRS shuttered its geolocation tracking program not because of concerns about its constitutionality, but only because it wasn’t useful—a similar fate to what happened with the NSA’s bulk metadata collection.
Other departments have also expressed the opinion that bulk data purchases are constitutional. The Defense Intelligence Agency said in a memo made public last month that it can buy bulk data because the Supreme Court’s Carpenter decision only applies to law enforcement—and not to intelligence agencies.
“The court did not consider ‘collection techniques involving…national security,’” the memo said. “By extension, the court did not address the process, if any, associated with commercial acquisition of bulk commercial geolocation data for foreign intelligence/counter-intelligence purposes.”
Nor does the Biden Administration seem interested in checking the geolocation tracking programs. When new National Intelligence Director Avril Haines was asked about the programs during her confirmation process, she played lip service to the importance that “American people have an understanding of when, and under what authorities, the government is buying their private data”—but she said nothing about curtailing such surveillance.
If it’s indeed important for Americans to know how they’re being tracked, then it’s unclear why the DSH, CBP and ICE are still contesting a lawsuit from the American Civil Liberties Union to produce records about their geolocation tracking programs. Again, this ACLU lawsuit isn’t even challenging the tracking programs— it’s only trying to wrangle records from them—and yet government is insistent on pursuing litigation that could last years.
By the time the Supreme Court would make any rulings on the geolocation tracking programs, it could be nearing the end of the decade, and government agencies will almost certainly have found another workaround by then.
“If law enforcement agencies can buy their way around the Fourth Amendment’s warrant requirement, the landmark protection announced by the Supreme Court in Carpenter will be in peril,” the ACLU said when announcing its lawsuit in December.
Unfortunately, it’s apparent that the Carpenter decision has long passed the point of peril, taking the entire Fourth Amendment with it.
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