When the United States Supreme Court ruled last year that Fourth Amendment protections apply to location data on mobile devices, it was hailed as a significant privacy victory for individuals. But what wasn’t clear is how intelligence and law enforcement agencies would handle the ruling when it came to using their authority under Section 215 of the PATRIOT Act to collect phone location data.
But the Office of the Director of National Intelligence has sent a letter to a senior member of the Senate Select Committee on Intelligence confirming that the intelligence community and Department of Justice have not been collecting mobile device location data using Section 215 since the ruling in June 2018. That section is what gives agencies the authority to gather information, including some telephone record information as part of national security investigations, under the Foreign Intelligence Surveillance Act. That power has been highly controversial for many years, and privacy advocates and some legislators have been pushing for Section 215 to be reformed to provide better privacy protections for individuals.
Last year, the Supreme Court ruled in Carpenter v. United States that mobile phone location records are afforded Fourth Amendment protections. In a letter responding to questions from Sen. Ron Wyden (D-Ore.), Assistant DNI for Legislative Affairs Benjamin Fallon said that the intelligence community has stopped collection of those records, including cell site location information (CSLI), under Section 215.
“While neither the Department of Justice nor the INtelligence Community has reached a legal conclusion as to whether the ‘traditional’ Title V provision may be used to obtain CSLI in light of Carpenter, given the significant constitutional and statutory issues the decision raises for use of that authority to obtain such data, the Intelligence Community has not sought CSLI records or global positioning system (GPS) records pursuant to Title V of FISA since Carpenter was decided,” the letter says.
Both GPS and CSLI records can be used to reconstruct the historical location and movements of an individual’s device, which raises serious privacy concerns. In July, Wyden sent a letter to Dan Coats, who was then the DNI, asking how the Carpenter ruling affected the intelligence community’s ability to collect CSLI. The response from Fallon makes clear that for right now, intelligence agencies are not collecting that information under Section 215, but that does not preclude the government from getting that data with a warrant.
Wyden said the decision not to use Section 215 to gather CLSI data should be codified in law.
“The Intelligence Community has now publicly revealed that, since the Supreme Court decision more than a year ago, it hasn’t used Section 215 of the PATRIOT Act to track Americans,” Wyden said in a statement.
“At the same time, the government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance. The Supreme Court has confirmed that tracking our movements without a warrant is unconstitutional. Now that Congress is considering reauthorizing Section 215, it needs to write a prohibition on warrantless geolocation collection into black-letter law. As the past year has shown, Americans don’t need to choose between liberty and security – Congress should reform Section 215 to ensure we have both.”