U.S. Treasury Bypasses Fourth Amendment by Buying Location Data for Law Enforcement Purposes
by Anthony W. Accurso
Recent FOIA disclosures revealed two contracts for law enforcement agencies under the U.S. Treasury—the IRS and Office of Foreign Assets Control (“OFAC”)—which will allow the agencies to obtain location data about persons being investigated, an action that circumvents legal requirements.
Under the U.S. Supreme Court’s ruling in Carpenter v. United States, 138 S. Ct. 2206 (2018), law enforcement must get a warrant—which first requires they establish probable cause and does not allow for “fishing expeditions”—before obtaining a person’s historical location data, usually from cell phone carriers.
However, digital advertising companies track user location data also—along with a lot of other information—and sell this data to law enforcement and other entities. Critics say that allowing law enforcement agencies to purchase this data effectively sidesteps constitutional safeguards meant to protect citizens’ privacy.
One such company is Babel Street. It sells access to a service dubbed “Locate X,” which “provides clients with geolocational data gleaned from mobile apps, which often relay your coordinates to untold third parties via advertisements or pre-packaged code embedded to give the app social networking features or study statistics about users,” according to The Intercept.
Services like Locate X provide “anonymized” data, that is, data that is linked to an advertising ID instead of a person’s name. But, in an interview with Motherboard.com, an anonymous Babel Street employee revealed that “we could absolutely deanonymize a person” and that employees would “play with it, to be honest.”
The contract for OFAC was dated July 15, 2021, for an amount totaling $154,982. OFAC is tasked with enforcing sanctions placed on hostile foreign powers—countries like Iran, Cuba, and Russia that violate international rules and norms. However, there are no limits on whom the agency can impose enforcement actions, and a report by the Brennan Center for Justice pointed out that this includes American citizens within U.S. borders and foreigners without any government ties.
The contract says OFAC will use Locate X for “analysis of cellphone ad-tech data ... to research malign activity and identify malign actors, conduct network exploitation, examine corporate structures, and determine beneficial ownership.” OFAC clearly believes it can purchase user location data—instead of obtaining it through a warrant—to conduct these investigations.
The other contract was for the IRS. It was finalized on September 30, 2021, with a price tag of $150,000. It requires the contract provider to “capture information from public facing digital media records” for the purpose of detecting individuals who fail to properly report taxable income. In other words, Babel Street will be providing information on citizens that it harvests from social media sites, so the IRS can crack down on small businesses that aren’t tax compliant.
According to the contract, Babel Street will also provide “available biometric data, such as photos, current address, or changes to marital status,” along with “information of taxpayers’ past or present locations.” It will also provide to the IRS “reports showing that a taxpayer participated in an online chatroom, blog, or forum, and reports showing the chat room or blog conversation threads.”
“OFAC’s use of ad-tech location tracking for economic sanctions is a troubling extension of the previously known usage by CBP, the FBI and Secret Service, IRS and the DOD,” said Jack Poulson, founder of Tech Inquiry, the group that obtained the documents through a FOIA request.
“Rather than backing off their invasive surveillance of smartphone location data,” Poulson continued, “U.S. intelligence and law enforcement agencies appear to be finding more use cases.”
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