by Anthony Accurso
The Treasury Inspector General for Tax Administration (“TIGTA”) is expected to investigate a claim that the IRS Criminal Investigation (“CI”) unit attempted to obtain location data on suspects without first obtaining a warrant.
The Supreme Court ruled in Carpenter v. United States (2019) that location data drawn from cellphones is a specially protected class of information because it reveals so much about the private lives of citizens. Subsequently, law enforcement must obtain a warrant to access this kind of data from cellphone carriers.
Companies such as Venntel Inc. make money by collecting location information through phone apps like games and weather, and e-commerce apps. This data represents tremendous marketing potential as the information available about users, even when it is “anonymized,” can be priceless.
For instance, it came to light that IRS officials found mobile devices at the scene of a crime and attempted to use location information provided by Venntel to determine where the devices’ owner(s) lived. They figured if they could isolate the mobile devices based on their movements to the crime scene, they could trace those movements back to a home where the devices were kept overnight, potentially revealing the criminals’ home(s).
According to the CI unit, they had a subscription to Venntel’s data in 2017 and 2018 but quit using the data after it failed to generate any investigative leads. It’s possible the criminals either disabled the location services in their devices or never used the apps that fed Venntel’s data set.
Sens. Ron Wyden (D-OR) and Elizabeth Warren (D-MA) have asked TIGTA to look into whether the IRS was using this location data after the Supreme Court’s ruling in Carpenter, and whether that use was justified by any legitimate legal rationale. While the IRS and Venntel refused to comment on the issue, TIGTA responded in a letter to the senators to say it would fully investigate the issue and advise the senators of the results.
In the meantime, several federal agencies — most notably the Department of Homeland Security — continue to pay brokers like Venntel for user location data. The agencies argue they are merely purchasing access to publicly available data on the open market, and that data is invaluable. It has been used to detect illegal border crossings and to track movements of Russian military officers.
More controversially, sources inside DHS have said that location data has been used since the ruling in Carpenter to track domestic criminals, e.g. drug smugglers, thought the investigating agents have made an effort to obscure this usage. At times, the agencies have justified this usage by saying that the Carpenter decision prevents them from obtaining the location data from cell phone carriers, but doesn’t explicitly prevent them from obtaining it from elsewhere.
Until the Supreme Court clarifies its Carpenter ruling in a subsequent case or Congress steps in to regulate agency usage of citizens’ location data, Americans will be left wondering how long these agencies will continue justifying violations of privacy.
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