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Your Texts, Emails, and Location Are Available to Law Enforcement, Regardless of How Law-Abiding You Are

by Jo Ellen Nott

Your attachment to interacting with social media and browsing the internet on your cellphone allows the government and law enforcement wide-open access to a disturbing amount of information about you. Even if you are not a user of social media and just carry a device around to make and receive phone calls, you are still being caught up in an ever-widening surveillance dragnet. If you are unlucky, it could make you collateral damage in a criminal investigation. In the best of cases, your personal information could merely end up in a government database to possibly be used against you in the future. 

The public would be well advised to know that recent reports about the Secret Service, Immigration and Customs Enforcement, and the FBI use of our personal data should make us all uneasy. In the words of J.D. Tucille, civil liberties, and government overreach pundit: “Our mobile devices constantly snitch on our whereabouts.” 

Those federal agencies are aware of the rules regarding cellphone tracking and data collection but either work around them or purchase data from businesses that profit from selling our electronic whereabouts. The use of our data revealed in the recent reports proves again that our addiction to mobile devices provides the government with “the most cost-effective surveillance system ever invented.” We gladly foot the bill to be surveilled 24/7 because Facebook, Instagram, Candy Crush, dating apps, and the ability for our bosses and family to ping us at any time seem essential to a 21st century life.  

The first report dealt with cell site simulators (“CSS”), which fool your phone into giving your location to individuals other than your cellphone service provider. The Office of the Inspector General of the Department of Homeland Security published a report on February 23, 2023, stating that “The United States Secret Service and U.S. Immigration and Customs Enforcement, Homeland Security Investigations (ICE HSI) did not always adhere to federal statute and cell site simulator (CSS) policies when using CSS during criminal investigations involving exigent circumstances.”

Cell site simulators simulate cellphone towers and trick phones within their range into connecting and revealing their location. The technology is also known as StingRay and was developed by the Harris Corporation in Florida. Another name for CSS is dirtboxes – a name derived from the company who makes them — Digital Receiver Technology (“DRT”).  Could the name be any more appropriate for a device that captures the data of innocent citizens who just happen to be in the area that law enforcement is working to find or track a suspect?

Under existing policy, a court must authorize the use of a CSS through a warrant. The February 2023 OIG report said that agencies do get a warrant when required, but policy becomes excessively relaxed when the circumstances are “exigent” or requires immediate action. Under those circumstances, law enforcement is required to get a less invasive pen register order. Applications for a pen register order must be made within 48 hours of their use, making them authorized surveillance but after the fact. 

It is of concern that the OIG found in several investigations from 2020 to 2021, the Secret Service did not obtain pen registers orders nor did ICE and HSI. The OIG also found that those agencies did not document supervisory approval for the deployment of CSS, nor did they document data deletion after the mission was completed.

Matthew Guariglia from the Electronic Frontier Foundation has written that “The federal government, and in particular agencies like HSI and ICE, have a dubious and troubling relationship with overbroad collection of private data on individuals.”

The second report refers to the March 8, 2023, Senate Intelligence Committee hearing in which location data collected from internet advertising was the topic. This data does not reveal your current location but rather where you have been. When questioned by Senator Ron Wyden (D-OR) about adtech location data, FBI Director Christopher Wray responded by saying the agency does not “currently purchase commercial database information that includes location data derived from internet advertising.” Then, reassuring absolutely no one, Wray offered to discuss the FBI’s use of adtech location data in a closed session.

Adtech is software and tools used to target digital advertising campaigns. To target potential customers more effectively, the apps we use on our mobile devices store a fair amount of data about us, our activities, and our previous locations that are tied to a unique ID. That ID is called a mobile advertising identifier.

Mobile advertising identifiers are supposed to be anonymous, and smartphone owners can supposedly reset them or disable them entirely, according to Warzel and Thompson of the New York Times. The writers said their research revealed, however, that “the promise of anonymity is a farce.” The IDs can be matched with other databases using tech tools available on the market.

The Supreme Court ruled in Carpenter v. United States, 138 S. Ct. 2206 (2018), that “the Government will generally need a warrant to access [cell-site location information].” Nevertheless, Government agencies work around the mandate of Carpenter by purchasing adtech because it is not cellphone company location data but rather marketing data openly available.   

In 2023, courts are considering cases involving geofence warrants. With that type of warrant, law enforcement seeks data on whoever was carrying a device in a certain area at a certain time. Electronic Frontier Foundation litigation director Jennifer Lynch argues that these warrants are “unconstitutional ‘general warrants’ because they do not require law enforcement to show probable cause that any one device was somehow linked to the crime under investigation.”

Some good advice for all of us: When you leave your home to do something you wish to remain private, consider leaving your cellphone behind. If you decide to carry it, know that you are carrying a tracking beacon readily available to law enforcement. 

Source:  The Intercept, Office of the Inspector General Department of Homeland Security, reason.com 

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