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The Habeas Citebook: Prosecutorial Misconduct

Office of Homeland Security Circumventing Warrant Requirement by Buying Cellphone Location Data from Marketing Firm

The Office of Homeland Security (“OHS”) has been purchasing “anonymized” cellphone location data for use in Customs and Border Protection (“CBP”) investigations, according to information obtained by the Wall Street Journal.

Under Carpenter v. United States, 138 S. Ct. 2206 (2018), law enforcement agents are required to obtain a search warrant demonstrating probable cause in order to obtain a user’s cellphone-location data. However, records show that OHS has been purchasing bulk data from Venntel Inc., which purchases location history data from companies that collect it, such as those that provide cell, search, and phone-app services to users. It then “merges, categorizes and interprets disparate location data” and provides “global coverage.”

Since this data is anonymized and commercially available, government lawyers have argued that Carpenter doesn’t apply.... “In this case, the government is a commercial purchaser like anybody else. Carpenter is not relevant,” according to Paul Rosenzweig, a former OHS official and now resident senior fellow at the conservative and libertarian think tank, the R Street Institute.

But whether this information is actually “anonymous” and how it is being used calls this conclusion into question.

“The data was used to detect cellphones moving through what was later discovered to be a tunnel created by drug smugglers between the U.S. and Mexico that terminated in a closed Kentucky Fried Chicken outlet on the U.S. side near San Luis, Arizona,” said people with knowledge of the operation. This led to the 2018 arrest of the restaurant’s owner on conspiracy charges. However, police records make no mention of the cell phone data, instead attributing it instead to information gathered from a routine traffic stop.

When law enforcement uses unconstitutional means to gather evidence of a crime, but then finds a legal means to later obtain that evidence for use in a criminal case, this practice is known as “parallel construction.” It is illegal for law enforcement to do this, and when parallel construction is proved, evidence is routinely suppressed.

While this case highlights one instance of abuse of its authority, it is unclear how widespread such abuses are in the agency’s use of such data.

“OHS should not be accessing our location information without a warrant, regardless whether they obtain it by paying or for free,” said Nathan Freed Wessler, a staff attorney for the ACLU’s Speech, Privacy, and Technology Project. “The failure to get a warrant undermines Supreme Court precedent establishing that the government must demonstrate probably cause to a judge before getting some of our most sensitive information, especially our cell phone location history.”  

 

 

 

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