Concerns Raised Over Federal Law Enforcement Agencies Buying Peoples’ Data
It is becoming increasingly apparent that the government may be circumventing the Fourth Amendment protections against unreasonable searches by buying up large amount of data from third parties that collect information about a person’s location via their cellphone data. While the Supreme Court ruled that the government must have a warrant to access historical cell site location information and track people’s movements through cell phones in Carpenter v. United States, this hasn’t stopped federal law enforcement agencies from simply buying data in bulk from third parties when trying to investigate targeted individuals. Records reveal that the IRS Criminal Investigations unit bought geolocation data of millions of Americans between 2018 and 2019 to assist in “significant money-laundering, cyber, drug and organized-crime cases” and the U.S. Immigration and Customs Enforcement paid over $1 million during that same time period for access to geolocation databases to assist in tracking undocumented migrants as they attempt to illegally enter the country. Other agencies such as the CDC, DEA, and Defense Intelligence Agency (DIA) have likewise spent large amounts of money for similar access to aid in their investigations, with the DIA explicitly stating that they, “[do] not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes.” The validity of that interpretation of the Supreme Court decision remains to be decided. In the meantime, while there isn’t much an individual can do to protect their cellphone data from potentially ending up in the hands of the federal government without a warrant, individuals can potentially allege a Fourth Amendment constitutional violation if it is used as an investigative tool against them in bringing criminal charges at a later date.
Federal Court Rules Fed’s Use of Geofence Warrants are “Categorically Prohibited” Under Fourth Amendment
As we have previously covered, there have been mounting legal challenges against the federal government using “geofence warrants” in which law enforcement obtains a search warrant that allows them to search a database to find all active mobile devices within a particular area at a specific time frame. Recently the Fifth Circuit Court of Appeals found that the use of these warrants are “categorically prohibited by the Fourth Amendment” because they are the exact type of “general, exploratory rummaging” that the Fourth Amendment is designed to protect against government overreach. Going forward, these types of searches should be considered inherently unconstitutional and law enforcement should not utilize them in the future according to their ruling. However, the ruling has its limitations. First, the court ruled that in the individual case, the convictions were not reversed because police at the time were protected by the “good faith” exception for the warrant at issue. Moreover, the ruling is in direct contrast to the Fourth Circuit Court of Appeals which found the complete opposite earlier this year, finding that geofence data warrants were not a Fourth Amendment violation. Such a Circuit split will lead to different outcomes in different areas of the United States. Any complete limitations on law enforcement use of geofence warrants will not be decided until and if the Supreme Court decides to weigh in on the issue. In the meantime, anyone facing criminal charges based on their cell phone data being used against them needs to hire an experienced criminal defense attorney who is prepared to fight against the government’s use of new and emerging technologies and prove that such use may run afoul of the constitution.
