Homeland Security Is Buying Its Way Around the Fourth Amendment

American taxpayers pay to be spied upon. That’s one takeaway from new documents obtained by the American Civil Liberties Union (ACLU), which has been examining how federal agents spent millions to purchase massive troves of cellphone location data and dodge Fourth Amendment requirements.

As part of a lawsuit against the Department of Homeland Security (DHS), the ACLU obtained thousands of previously unreleased records how DHS agencies—including Customs and Border Protection (CBP) and Immigration and Customs Enforcement (ICE)—are purchasing and accessing ” huge volumes of people’s cell phone location information quietly extracted from smartphone apps.”

These agencies are “sidestepping our Fourth Amendment right against unreasonable government searches and seizures,” suggests the ACLU.

In 2018, the US Supreme Court held (in Carpenter v. United States) that under the Fourth Amendment, law enforcement must have a warrant before accessing a suspect’s phone location data from cellular service providers. But federal authorities have been getting around this by purchasing aggregated cellphone location data from data broker firms like Ventel and Babel Street. And they’re spending millions of taxpayer dollars doing it.

This was first revealed by the Wall Street Journal back in 2020. The ACLU then set out to learn more, filing a Freedom of Information Act (FOIA) request and later suing to force DHS, ICE, and CBP to respond.

“Although the litigation is ongoing, we are now making public the records that CBP, ICE, the US Secret Service, the US Coast Guard, and several offices within DHS Headquarters have provided us to date,” the ACLU announced yesterday.

Cellphone location data purchased by DHS is aggregated. It doesn’t directly link the names or personal information of cellphone users to specific location data. But there’s still a lot of privacy-infringing information that can be gleaned from such information, says the ACLU:

In the documents we received over the past year, we found Venntel marketing materials sent to DHS explaining how the company collects more than 15 billion location points from over 250 million cell phones and other mobile devices every day.

With this data, law enforcement can “identify devices observed at places of interest,” and “identify repeat visitors, frequented locations, pinpoint known associates, and discover pattern of life,” according to a Venntel marketing brochure. The documents belabor how precise and illuminating this data is, allowing “pattern of life analysis to identify persons of interest.” By searching through this massive trove of location information at their whim, government investigators can identify and track specific individuals or everyone in a particular area, learning details of our private activities and associations.

In the face of the obvious privacy implications of warrantless access to this information, these companies and agencies go to great lengths to rationalize their actions. Throughout the documents, the cell phone location information is variously characterized as mere “digital exhaust” and as containing no “PII” (personally identifying information) because it is associated with a cell phone’s numerical identifier rather than a name — even though the entire purpose of this data is to be able to identify and track people. The records also assert that this data is “100 percent opt-in,” that cell phone users “voluntarily” share the location information, and that it is collected with consent of the app user and “permission of the individual.” Of course, that consent is a fiction: Many cell phone users don’t realize how many apps on their phones are collecting GPS information, and certainly don’t expect that data to be sold to the government in bulk.

The records acquired by the ACLU “shed new light on the government’s ability to obtain our most private information by simply opening the federal wallet,” the group says. “These documents are further proof that Congress needs to pass the Fourth Amendment Is Not For Sale Act, which would end law enforcement agencies’ practice of buying their way around the Fourth Amendment’s warrant requirement.”

More on the Fourth Amendment Is Not For Sale Act here.


FREE MINDS

House bill would protect same-sex marriage. New legislation in the House of Representatives would repeal the Defense of Marriage Act—the 1996 law saying marriage must be between a man and a woman—and codify the legality of marriage for same-sex couples. The move comes in the wake of the Supreme Court’s ruling in Dobbs v. Jackson Women’s Health Organization. That decision not only overturned Roe v. Wade but also sparked fears that other precedents—like the Supreme Court’s 2015 decision in Obergevel v. Hodgeswhich made same-sex marriage legal across the country—will be next.

“As this Court may take aim at other fundamental rights, we cannot sit idly by as the hard-earned gains of the Equality movement are systematically eroded,” said Judiciary Committee Chairman Rep. Jerry Nadler (D–NY) in a statement.

Nadler—one of 44 co-sponsors (all Democrats) of the Respect for Marriage Act, which was introduced by Sen. Dianne Feinstein (D–Calif.)—pointed to a concurring opinion in Dobbs in which Justice Clarence Thomas suggested the Court could reconsider the Obergevel decision. “If Justice Thomas’s concurrence teaches anything it’s that we cannot let your guard down or the rights and freedoms that we have come to cherish will vanish into a cloud of radical ideology and dubious legal reasoning,” said Nadler.


FREE MARKETS

Lawmakers hope immigration bill could also lower food prices. The Farm Workforce Modernization Act would make it easier for farmers and agricultural businesses to hire temporary workers throughout the year—hopefully lowering agricultural production costs in a way that would trickle down to consumers in the form of lower food prices. “Currently, year-round employers cannot use that worker visa program, known as the H-2A temporary agricultural program used by seasonal employers,” notes NPR.

The bill “would also satisfy some goals for labor rights advocates by providing a pathway to legalization for workers who show a dedicated history of farm work,” NPR points out. But while Republicans and Democrats are “inching closer to a deal” on the bill, a provision that would allow H-2A workers to sue over labor violations is still a point of contention:

Advocates say that with the increased number of visa workers, it is even more important to ensure all workers that do the same job have the same protections.

But the Farm Bureau and other employer groups argue the bill could potentially result in frivolous lawsuit costing producers, who are already operating on slim margins, thousands of dollars


QUICK HITS

• Democrats may be forced to actually pass legislation through the democratic process instead of simply changing the rules by fiat. “Democratic lawmakers’ inability to secure a majority at the Federal Communications Commission has stymied plans for the agency to restore Obama-era net neutrality rules,” notes The Washington Post. Instead, they’ll be attempting to pass net neutrality legislation once again, with the sweeping, soon-to-be-introduced Net Neutrality and Broadband Justice Act.

• A Maryland Republican running for the US Senate has been charged with making a false report about child sex trafficking. The man—Ryan Dark White, who also goes by Dr. Jon McGreevey—claimed an adult male was forcing a young girl to perform sex acts in an adult bookstore. Police investigation found “at no time were any sex acts performed or offered by any of the individuals in the establishment as reported by White,” according to a press release.

• A judge has temporarily suspended a West Virginia abortion ban from taking effect.

• Arizona is the latest state to get told no, it can’t ban people from recording police activity. “Over the past quarter-century, six other federal appellate courts took up the question, and all reached the same conclusion,” note Institute for Justice lawyers in The Wall Street Journal.

The Washington Post editorial board urges the Food and Drug Administration to approve HRA Pharma’s application to sell an oral contraceptive pill over-the-counter. “With states rushing to cut off access to abortion, and birth control looming as a potential battleground in the war over reproductive rights, it is important that the FDA make this matter a priority.”

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