The old Police song goes, “every breath you take, every move you make, every bond you break, every step you take, I’ll be watching you.”
So who knows your every step, including every visit to a store, clinic, den of vice or place of worship? Your smartphone, of course, which keeps a continuous log of your location history.
PPSA has tracked the increasing practice of government agencies to get around the Fourth Amendment requirement for a probable cause warrant by simply buying our location data. We know that the Department of Homeland Security, Immigration and Customs Enforcement and Customs and Border Protection have purchased personal data from brokers. We also reported that the government has scraped data from Muslim prayer and dating apps.
How does this work? It’s all about wallets, not warrants.
“[T]he government, instead of getting an order, just goes out and purchases records of Americans from these sleazy and unregulated commercial data brokers who are simply above the law,” Sen. Wyden said.
Now the Defense Intelligence Agency has responded to queries from Sen. Ron Wyden to confirm that it, too, buys data on Americans.
In a recent letter to Sen. Wyden, DIA says its data providers do not make a distinction between domestic and foreign locations. So the agency buys it all and then filters out locations on U.S. soil, segregating this domestic data into a separate database.
The agency has granted permission five times to query the location data to follow locations inside the United States. The circumstances of these queries are not clear. Was the target a U.S. citizen? A suspected spy or terrorist? DIA did make it clear that in order to access domestic locations, the query must be approved by the DIA general counsel, the Office of Oversight and Compliance, and DIA senior leadership.
This is an enormous surveillance power that so far appears to be well regulated. DIA made a legal distinction between its operations and those of law enforcement. In 2018, the Supreme Court ruled in Carpenter that law enforcement authorities should have obtained a warrant to access the location history of a criminal suspect. But DIA notes that the Court in its opinion declared that its decision did not consider collection techniques involving foreign affairs or national security.
Perhaps senators should inquire in a classified briefing:
Were the presumably five “U.S. persons” who had their location histories accessed American citizens?
What was the national security justification for accessing their movements?
Would a probable cause warrant have been required if DIA did not have the ability to purchase this information?
PPSA’s concern is that the practice of buying our most sensitive personal information is spreading, with processes that are often opaque. Moreover, while DIA correctly cites the Carpenter opinion, there are no grounds for holding that the U.S. Constitution governs law enforcement, but not Americans’ Fourth Amendment rights under scrutiny by national security agencies. Within a few weeks, Sen. Ron Wyden (D-OR) is expected to introduce his “The Fourth Amendment Is Not for Sale” Act to prohibit this practice by the government. We’ll keep you posted.
Judge Andrew P. Napolitano: The Constitution is not for sale
“Those of us who follow the government’s violations of natural rights and constitutional guarantees have been arguing for years that the feds have the ability to monitor the movements of our smartphones.
“We have also argued that the feds can listen in on conversations that take place in the presence of smartphones, and they do all this without obtaining a search warrant.
“Last week, the feds admitted that they have been doing this since the latter part of the Obama administration and throughout the Trump administration ...
“The DIA’s justification for its warrantless spying is breathtaking. It argues that because it is not law enforcement, it is not subject to the constitutional restraints imposed upon law enforcement as interpreted by the Supreme Court. This is an argument that the court has never accepted. The DIA, apparently, thinks it is a law unto itself.
“It also claims that because it can purchase the tracing software commercially, it can use it freely, just like any other purchaser. Such a rationale utterly defies the Fourth Amendment to the Constitution. Private purchasers are not bound by the Fourth Amendment – but the government is.”