by Jerry Dunleavy, Justice Department Reporter | January 23, 2021
At least some of the U.S. intelligence community purchases commercially available cellphone data containing location information from smartphone apps and uses that to search and track the movements of U.S. citizens without a grand jury subpoena or a court order, according to an unclassified memo.
The Defense Intelligence Agency told Sen. Ron Wyden of Oregon in a document made public on Friday that it “provides funding to another agency that purchases commercially available geolocation metadata aggregated from smartphones,” but it has only done so for “authorized purposes” five times in the past two-and-a-half years.
Sent after Wyden grilled Biden’s pick for the director of national intelligence, Avril Haines, on this issue during her confirmation hearing last week, the Pentagon intelligence arm said that “the data DIA receives is global in scope and is not identified as ‘U.S. location data’ or ‘foreign location data’ by the vendor at the time it is provisioned to DIA.” The agency “processes the location data as it arrives to identify U.S. location data points, that it segregates in a separate database,” the memo said, noting that DIA personnel “can only query the U.S. location database when authorized through a specific process” requiring multiple levels of approval.
Haines, who was overwhelmingly confirmed by the Senate on Wednesday night, was asked by Wyden if she would agree to inform U.S. citizens about “any circumstances in which the intelligence community purchases their data and the legal basis for doing it.” In particular, the Democrat cited concerns about privacy rights.
“I know I’m not up to date at this point, but would be if confirmed, obviously, on the degree to which we’re purchasing commercially available information, but I would seek to try to publicize, essentially, a framework that helps people under the circumstances under which we do that and the legal basis that we do that under,” Haines said in reply. “I think that’s part of that’s critical to promoting transparency generally, is so that people have an understanding of the guidelines under which the intelligence community operates.”
Pledging to work with Haines on this issue, Wyden stressed that “the abuses here take your breath away, and it really is a dodge on all the legal protections Americans have.”
A 2018 Supreme Court decision for Carpenter v. United States determined that “the Government’s acquisition of Carpenter’s cell-site records was a Fourth Amendment search” and that “the Fourth Amendment protects not only property interests but certain expectations of privacy as well.” The justices noted “a majority of the Court has already recognized that individuals have a reasonable expectation of privacy in the whole of their physical movements” and concluded that “allowing government access to cell-site records … contravenes that expectation.”
But the high court also emphasized that “our opinion does not consider other collection techniques involving foreign affairs or national security.”
“We confirm that DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially-available data for intelligence purposes,” according to the memo made public by the New York Times. The agency said that “the Court did not address the process, if any, associated with commercial acquisition of bulk commercial geolocation data for foreign intelligence / counter-intelligence purposes.”
But the DIA did claim “the privacy concerns raised by Carpenter in the law enforcement context bear on procedures DIA has put into place to control access to and use of commercial data collected from geolocations within the U.S.”
The military intelligence agency said it followed the rules detailed in the Defense Department’s manual, which “establishes procedures to enable DoD to conduct authorized intelligence activities in a manner that protects the constitutional and legal rights and the privacy and civil liberties of U.S. persons.”
Benjamin Fallon, the assistant DNI for legislative affairs, said in 2019 that “the Department of Justice and the Intelligence Community carefully consider all Supreme Court precedent, including Carpenter, when evaluating how and whether the Fourth Amendment applies to a proposed intelligence activity.” He also pointed out that the reauthorization of USA Freedom Act of 2015 continued to provide Title V powers under the Foreign Intelligence Surveillance Act for national security investigations.
Following the Supreme Court decision the year prior, “the Intelligence Community has not sought cell-site location information records or global position system records pursuant to Title V of FISA,” and “the current practice of the government under FISA is to obtain historical and/or prospective CSLI or GPS-based location information for intelligence purposes pursuant to Titles I and/or III or FISA, based upon a showing of probable cause,” he said.
An investigation by the Wall Street Journal in February 2020 revealed that “the Trump administration has bought access to a commercial database that maps the movements of millions of cellphones in America and is using it for immigration and border enforcement,” and the Department of Homeland Security (specifically U.S. Immigration and Customs Enforcement and U.S. Customs and Border Protection) made use of that data.
The National Security Agency issued a guidance in August 2020 on how to mitigate the possibility of being tracked through cellphone data.
“Mobile devices store and share device geolocation data by design. This data is essential to device communications and provides features — such as mapping applications — that users consider indispensable. Mobile devices determine location through any combination of Global Positioning System and wireless signals or Bluetooth. Location data can be extremely valuable and must be protected. It can reveal details about the number of users in a location, user and supply movements, daily routines (user and organizational), and can expose otherwise unknown associations between users and locations,” the NSA said, adding that “mitigations reduce, but do not eliminate, location tracking risks in mobile devices.”
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