By Tim Cushing
DHS components are buying up cell location data from third parties to track down undocumented immigrants and whoever else ICE and CBP might be interested in. The IRS is doing the same thing. So is the Department of Defense.
The location data is harvested from dozens of phone apps. This data makes its way to a variety of data brokers — often without the explicit knowledge of app users or developers — who then sell access to government agencies. This access seems to violate the spirit of the Supreme Court’s Carpenter decision (which erected a warrant requirement for cell site location info), if not the actual letter of ruling.
This has drawn the attention of a number of Senators, including Ron Wyden. In response to Senate questions, the Inspector General for the IRS has opened an investigation into the agency’s practice of buying location data from private companies.
The DHS is now undergoing the same scrutiny.
The department’s inspector general told five Democratic senators that his office would initiate an audit “to determine if the Department of Homeland Security (DHS) and its components have developed, updated, and adhered to policies related to cell-phone surveillance devices,” according to a letter sent last week to Capitol Hill and shared with The Wall Street Journal.
The letter came in response to a request in October from Sens. Ron Wyden (D., Ore.), Elizabeth Warren (D., Mass.), Sherrod Brown (D., Ohio), Ed Markey (D., Mass.) and Brian Schatz (D., Hawaii) to probe whether the purchase of commercial cellphone data on Americans for law-enforcement purposes was lawful.
This is welcome news, considering no agency has offered up a legal rationale for dodging apparent warrant requirements by purchasing data from third party brokers — brokers who are an additional hop away from the third parties who collected the data in the first place. When even app developers aren’t sure whose buying their data, it’s pretty difficult to argue anyone tracked via this method knowingly and voluntarily “shared” their location with the data brokers selling access to the government.
This won’t be the only investigation either. The DHS IG is also looking into other “open source” intel gathering performed by DHS agencies. The guidelines for gathering intel from social media accounts and other publicly accessible internet services hasn’t been explained sufficiently and/or examined by the DHS’s Congressional oversight.
Unfortunately, this investigation may not lead to the termination of this data collection. The DHS’s general counsel has already declared this to be legal — something revealed by BuzzFeed earlier this year.
In an internal memo obtained by BuzzFeed News, the DHS’s top attorney, Chad Mizelle, outlined how ICE officials can look up locations and track cellphone data activity to make decisions on enforcement.
Mizelle also believes the agency can use the data without obtaining a warrant or violating the Fourth Amendment, which protects the public against unreasonable searches and seizures.
That’s the pitch the DHS is making. It hasn’t made that pitch publicly, however. BuzzFeed’s reporting covered a leaked memo. This claim hasn’t been made on the record and, given the flexible contours of the Supreme Court’s Carpenter decision, there’s a good chance it won’t hold up in court, much less under Congressional scrutiny. But, as it stands now, these agencies are still in the location data buying business until further notice.