The Pentagon may be using business data to track Americans without legal process, according to a letter from Senator Ron Wyden shared with Vice News. Wyden had questioned the Department of Defense (DoD) about the mobile location and other data he had purchased from commercial sources, following reports in the WSJ and elsewhere. The DoD answered some questions, but several responses were redacted. “I am writing to urge you to disclose to the public information about the Department of Defense warrantless surveillance of Americans,” Wyden replied.
Various U.S. law enforcement agencies have purchased electronic cell phones and other location data from apps installed on U.S. phones to track suspected terrorists, illegal immigrants, and other groups. since at least 2017. “I have spent the last year investigating the shady, unregulated data brokers who sell that data and the government agencies that buy it,” the letter read.
In February 2020, media revealed that U.S. government agencies were purchasing location data obtained from apps on U.S. phones and doing so without any legal process, such as a court order. I’ve spent the last year investigating the shady, unregulated data brokers that sell that data and the government agencies that buy it.
It is illegal for government agencies to directly monitor Americans under the U.S. Fourth Amendment without a warrant. In addition, the United States Supreme Court ruled in 2018 that it was also illegal for law enforcement to access cell phone location data without a court order (Carpenter). According to Wyden, however, the DoD’s spy agency, the Defense Intelligence Agency (DIA), has taken the position that these rules do not apply to business data “that the government buys.”
To that end, Wyden wanted to know if the DoD as a whole had endorsed this “legal theory.” He also asked which other DoD agencies “buy and use, without a court order, data acquired on Americans.” This includes location and automotive telematics data, as well as internet metadata, including so-called Netflow and DNS records.
The DoD responded to Wyden that it is up to each agency to ensure they follow the law. The remaining responses have been redacted, but Wyden believes they should be made public. “Information should only be classified if its unauthorized disclosure would harm national security,” he wrote. “The information provided by DoD in response to my questions does not meet this bar.”
Under the Trump administration, the United States expanded the Patriot law authorizing surveillance without a warrant (despite the Edward snowden revelations) and it was recently re-approved by courts under Biden. However, it is still a legal gray area as to where data purchases would fall under such rules. Now Wyden and others are offering new legislation called “The Fourth Amendment is Not for Sale Act” which would require law enforcement to obtain locate warrants and other data purchased by law enforcement agencies.
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