NSA Asks Congress To Not Block Federal Agencies From Collecting Location Data Without A Warrant

For several years, the government was able to route around the Fourth Amendment by turning cell service providers into proxy tracking devices. Thanks to the Third Party Doctrine, location data generated by cell phones wasn’t given an expectation of privacy.

A Supreme Court decision handed down in 2012 strongly suggested the government needed to obtain a warrant before placing tracking devices on people’s vehicles. No problem, said the government. People take their phones more places they take their cars and all that information can be obtained without a warrant.

If the Supreme Court closes a door, the government opens a window. That worked for another six years — a lifetime in terms of constitutional protections in an ever-evolving tech world. But, in 2018, the Supreme Court said the government needed a warrant to obtain long-term location tracking info. The decision mainly dealt with cell service providers but the implications ran beyond that, suggesting an expectation of privacy existed for any bulk, long-term collection of location data the government could use to track a person’s movements over weeks or months.

Once again, rather than seek warrants, the government looked for other warrantless options. And far too many data brokers were more than happy to help out. While the location information gleaned from apps might produce data that was less exhaustive than the data points generated by every cell tower a cell user connects to, it was still worth something to the government. Even better, the 2018 Carpenter decision did not explicitly say the government couldn’t use other means or methods to engage in the same long-term tracking the Supreme Court said was unconstitutional without a warrant.

This growth market in no-warrant-needed data sales has, at least, provoked congressional responses. For the past few years, Senator Ron Wyden has been attempting to pass a law instituting a warrant requirement for location data purchases. Those efforts finally appear to be moving forward, with the latest iteration of bill being passed out of committee where it may (eventually) be subjected to a vote on the Senate floor.

And his effort isn’t the only one. The must-pass National Defense Authorization Act (NDAA) bill has been hit with an amendment that would do the same thing the Wyden bill does: add a warrant requirement to location data purchases from data brokers.

A copy of the [Warren] Davidson- [Sara] Jacobs amendment reviewed by WIRED shows that the warrant requirements it aims to bolster focus specifically on people’s web browsing and internet search history, along with GPS coordinates and other location information derived primarily from cellphones. It further encapsulates “Fourth Amendment protected information” and would bar law enforcement agencies of all levels of jurisdiction from exchanging “anything of value” for information about people that would typically require a “warrant, court order, or subpoena under law.”

The NSA — which is one major beneficiary of defense budget bills — is alarmed that federal agencies might have to comply with Carpenter decision by securing warrants before seeking access to long-term location tracking info. It seems upset that refusing to follow the spirit of the Carpenter decision has resulted in a concerted effort to close a loophole government agencies have exploited for the last half-decade.

Not only does it need to continue to fight for its right to engage in the warrantless spying it already does as an enabler of decades of FBI abuses, it now needs to fight for its right to ignore Supreme Court precedent just because the precedent did not consider the limits it placed on location data collection would be sidestepped by data brokers who discovered selling to shady government agencies could be as profitable as selling to shady advertisers. Dell Cameron has the details for Wired:

Republican and Democratic aides familiar with ongoing defense-spending negotiations in Congress say officials at the National Security Agency (NSA) have approached lawmakers charged with its oversight about opposing an amendment that would prevent it from paying companies for location data instead of obtaining a warrant in court.

It’s unclear how often the NSA itself purchases data from brokers but some info has leaked out around the edges that suggests it considers it to be a useful part of its national security efforts. Considering it has a wealth of collection options not currently subject to warrant requirements suggests this effort is more about keeping options open for other federal law enforcement agencies, rather than the NSA itself being negatively effected by this amendment. That the military is known to purchase bulk location data from brokers likely factors into this lobbying effort, considering this amendment is attached to a bill that affects both the NSA’s and the US military’s budgets.

The NSA is fighting a battle on multiple fronts. And it’s not clear why this one appears to be worth the effort. The bigger concern for the NSA is the possible loss of its Section 702 surveillance authority — something that has been undermined for years by the FBI’s continuous abuse of its access to NSA Section 702 collections. But the NSA appears to believe its best move at this point is to persuade legislators no one in the government should be denied warrantless access to data brokers’ offerings. Perhaps it might be more useful for it to go after the FBI for undermining the public’s trust, setting it up for a fight it didn’t provoke and now finds itself faced with the suddenly, very real possibility of losing.