by Dale Chappell
Federal agencies have been spying on citizens by buying cell site location data (“CSLI”) from private companies in order to avoid the requirement of a search warrant that they would normally need to gather such data directly themselves from cellphone service providers.
The loophole seems to be a way around not only the Constitution but also the U.S. Supreme Court’s holding in Carpenter v. United States, 138 S. Ct. 2206 (2018), which held that a government agency must get a search warrant in order to gather CSLI on the public, including suspects in a crime. Documents obtained through public records requests by advocacy groups show that agencies, such as Customs and Border Patrol (“CBP”), Immigration and Customs Enforcement (“ICE”), and the Secret Service have purchased CSLI from private companies to snoop on the public.
In one contract, a company called “Locate X” provided the Secret Service with CSLI at a cost of almost $2 million. A former Babel Street employee, the company which bought Locate X, gave details to the media back in March about this, along with information about the CBP and ICE using Locate X to buy citizens’ CSLI.
The government agencies buying the CSLI say this doesn’t violate the Constitution’s requirement under the Fourth Amendment that they get a search warrant to access this data because it’s supposedly “pseudonymized,” or some of the personal identifying data is removed. Perhaps this doesn’t violate the Carpenter ruling because the Supreme Court specifically required a warrant for data obtained from cellphone providers and not private companies that gather that data.
And maybe they’re right. After all, a private citizen can break the law to gather evidence and turn it over to law enforcement without needing a search warrant, the Supreme Court had said. That’s as long as law enforcement doesn’t direct that citizen to do so. If the government agencies aren’t asking Locate X to gather data, there indeed could be a loophole.
Senator Ron Wyden doesn’t like this. “It is clear that multiple federal agencies have turned to purchasing Americans’ data to buy their way around Americans’ Fourth Amendment rights,” he said. He is drafting legislation to close this loophole, he says.
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