DOJ Inspector Affirms that Supreme Court Ruling Forbids All Warrantless Surveillance of Americans’ Location Data
In his frequent testimonies on the Hill, Department of Justice Inspector General Michael Horowitz is – by the standards of Washington, D.C. – refreshingly frank. In a House hearing last week, Rep. Ben Cline (R-VA) asked Horowitz penetrating questions and received some intriguing answers. (Go to the 2:30 mark.)
Cline noted that in the Senate’s recent annual worldwide threats hearing, FBI Director Christopher Wray divulged that the Bureau has in the past bought Americans’ precise geolocation data derived from mobile phone advertising, before backing away from the practice in the face of thorny legal issues.
Cline then asked Horowitz: “Have other parts of the DOJ purchased or are other parts of the DOJ still purchasing this kind of information about Americans?”
Horowitz replied, “we’re looking at that, we saw those news stories.” He promised to follow up with answers. “Needless to say,” Cline said that if such surveillance is still occurring, “that would be very disturbing.”
Cline then asked: “How did the FBI and potentially other elements of the DOJ come to believe that buying location information about Americans without a warrant would be legal, especially after the Supreme Court’s decision in U.S. v. Carpenter (2018), which held that Americans’ location information is protected by the Fourth Amendment?”
“I think it raises precisely the issues you mention,” Horowitz replied. “What I am supposing may have happened is that before Carpenter, of course, the department took advantage at least in some instances of the ambiguity in the law. Post-Carpenter that of course shouldn’t have happened.”
Cline then asked if the inspector general knew of other parts of DOJ buying similar sensitive information, such as communications or internet records.
Horowitz replied that he is following up on an inquiry from Sen. Ron Wyden (D-OR) about a surveillance program run through the office of the Attorney General of Arizona.
This is a reference to an unorthodox surveillance scheme in which a unit of the Department of Homeland Security surveilled wire money transfers of Americans above $500 – some to Mexico, some within the United States. This bulk data was centralized in a non-profit, private-sector organization, which shared it with hundreds of federal, state, and local law enforcement agencies.
“These are issues on our radar,” Horowitz said.
So in the span of three minutes, the Department of Justice Inspector General unambiguously affirmed that warrantless access by federal agencies of location data would violate a Supreme Court ruling, promised to report on whether agencies are illicitly buying Americans’ location data, as well as to report on the Arizona wire-money transfer surveillance.
Rep. Cline concluded his questioning by telling Horowitz that he has “a track record of achieving compliance from agencies that otherwise are reluctant to provide it.” The congressman said he hoped Horowitz would continue to be aggressive, because it “doesn’t seem that the message is getting through.”
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