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CBP Promises Not to Buy Location Data – But Is It a Hollow Promise?

by Michael Dean Thompson

Global Positioning Satellite (“GPS”) systems began as a tool to help the American military prosecute wars. Among its many uses today is to help the American criminal justice system prosecute its citizens. Not too long ago, the government was forced to tag vehicles with GPS monitoring devices if they wanted to follow a citizen’s movements. While that still happens, Americans have tagged themselves in ever increasing numbers, including with devices designed to do just that. Americans have also armed themselves with phones that track their location and supply that information to any number of apps running on the phone, often without the end-user’s knowledge. In addition, our vehicle infotainment systems, which run off essentially the same operating systems and use the same apps, can pull GPS data from a variety of sources within the vehicle and forward it to even more “services.”

Law enforcement agencies like Customs and Border Protection (“CBP”) had been using subpoenas to request location information from companies like Google, Apple, and even OnStar and Uber. However, problems emerged. The first was that just because a person had a Google phone or used a Google app, it did not mean Google had their data, and that was true for each company. The biggest obstacle in the quest to collect ever-more data on all Americans is the Supreme Court’s landmark case of Carpenter v. United States, 138 S. Ct. 2206 (2018), which held that the government must obtain a search warrant to access historical cell site location information containing the physical location of cellphones.

Both of these “problems” pointed to a single solution, which, of course, was not to end the practices. The companies that collect location data use that information as an additional revenue stream by selling it to data brokers. Via data brokers, law enforcement can purchase location data sourced from a variety of apps and services, including telematics, as a single data set, avoiding the warrant requirement and expanding the number of entries well beyond anything any one of the original companies could provide.

Lawmakers interested in protecting our civil rights have become aware of this end-run around the Constitution. Among them, Sen. Wyden (D. Oregon) has led the effort to end the warrantless collection of location data by federal agencies. Despite Congressional investigations into these data brokers, many federal agencies were undeterred and continued purchasing the location data of millions of Americans who are not even suspected of any crime.

CBP did, however, inform Sen. Wyden’s office that it would no longer purchase commercially sourced smartphone location data, according to Joseph Cox of 404 Media. But there is some room for equivocation in that claim. Recall that vehicle telematics also collect GPS data. Because telematics collect far more information than even smartphones (and some telematics vendors do not even ask for a subpoena before handing over data), it may be the case that CBP will focus on telematics moving forward. In fact, CBP is already a well-established consumer of vehicle data mining tools like those provided by Berla.

There is another option: fusion centers. There are at least 78 fusion centers across the U.S., with at least one in every state and territory. CBP partners heavily with the fusion centers, which are likely already purchasing – and processing – that same location data and making it available to their CBP partners, allowing CBP to appease Congress while continuing unabated in its use of warrantless location data.

Whatever the reason for CBP’s sudden acquiescence with regard to “commercially sourced smartphone location data,” it is but one agency among many that have found the invasive surveillance potential of location data far too addictive to give it up so easily.  



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