“When the government tracks the location of a cellphone it achieves near perfect surveillance, as if it had attached an ankle monitor to the phone’s user,” wrote John Roberts, the chief justice of the Supreme Court, in a 2018 ruling that prevented the government from obtaining location data from cellphone towers without a warrant.
“We decline to grant the state unrestricted access to a wireless carrier’s database of physical location information,” Chief Justice Roberts wrote in the decision, Carpenter v. United States.
With that judicial intent in mind, it is alarming to read a new report in The Wall Street Journal that found the Trump administration “has bought access to a commercial database that maps the movements of millions of cellphones in America and is using it for immigration and border enforcement.”
The data used by the government comes not from the phone companies but from a location data company, one of many that are quietly and relentlessly collecting the precise movements of all smartphone-owning Americans through their phone apps.
Many apps — weather apps or coupon apps, for instance — gather and record location data without users’ understanding what the code is up to. That data can then be sold to third party buyers including, apparently, the government.
Since that data is available for sale, it seems the government believes that no court oversight is necessary. “The federal government has essentially found a workaround by purchasing location data used by marketing firms rather than going to court on a case-by-case basis,” The Journal reported. “Because location data is available through numerous commercial ad exchanges, government lawyers have approved the programs and concluded that the Carpenter ruling doesn’t apply.”
A spokesman from Customs and Border Protection defended the practice in a statement to The Times: “While C.B.P. is being provided access to location information, it is important to note that such information does not include cellular phone tower data, is not ingested in bulk and does not include the individual user’s identity.”
Use of this type of location-tracking data by the government has not been tested in court. And in the private sector, location data — and the multibillion dollar advertising ecosystem that has eagerly embraced it — are both opaque and largely unregulated.
Last year, a Times Opinion investigation found that claims about the anonymity of location data are untrue since comprehensive records of time and place easily identify real people. Consider a commute: Even without a name, how many phones travel between a specific home and specific office every day?
This week’s revelations dredge up many questions about C.B.P.’s workflow: What precisely does the agency mean when it claims that the data is not ingested in bulk? Who in the agency gets to look at the data and for what purposes? Where is it stored? How long is it stored for? If the government plans to outsource the surveillance state to commercial entities to bypass Supreme Court rulings, both parties ought to be questioned under oath about the specifics of their practices.
The use of location data to aid in deportations also demonstrates how out of date the notion of informed consent has become. When users accept the terms and conditions for various digital products, not only are they uninformed about how their data is gathered, they are also consenting to future uses that they could never predict.
Without oversight, it is inconceivable that tactics turned against undocumented immigrants won’t eventually be turned to the enforcement of other laws. As the world has seen in the streets of Hong Kong, where protesters wear masks to avoid a network of government facial-recognition cameras, once a surveillance technology is widely deployed in a society it is almost impossible to uproot.
Chief Justice Roberts outlined those stakes in his Carpenter ruling. “The retrospective quality of the data here gives police access to a category of information otherwise unknowable. In the past, attempts to reconstruct a person’s movements were limited by a dearth of records and the frailties of recollection. With access to [cellphone location data], the Government can now travel back in time to retrace a person’s whereabouts, subject only to the retention polices of the wireless carriers, which currently maintain records for up to five years. Critically, because location information is continually logged for all of the 400 million devices in the United States — not just those belonging to persons who might happen to come under investigation — this newfound tracking capacity runs against everyone.”
The courts are a ponderous and imperfect venue for protecting Fourth Amendment rights in an age of rapid technological advancement. Exhibit A is the notion that the Carpenter ruling applies only to location data captured by cellphone towers and not to location data streamed from smartphone apps, which can produce nearly identical troves of information.
For far, far too long, lawmakers have neglected their critical role in overseeing how these technologies are used. After all, concern about location tracking is bipartisan, as Republican and Democratic lawmakers told Times Opinion last year.
“I am deeply concerned by reports that the Trump administration has been secretly collecting cellphone data — without warrants — to track the location of millions of people across the United States to target individuals for deportation,” Representative Carolyn Maloney, who leads the Oversight and Reform Committee, told The Times. “Such Orwellian government surveillance threatens the privacy of every American. The federal government should not have the unfettered ability to track us in our homes, at work, at the doctor or at church. The Oversight Committee plans to fully investigate this issue to ensure that Americans’ privacy is protected.”
Surely, Congress has time to hold hearings about a matter of urgent concern to everyone who owns a smartphone or cares about the government using the most invasive corporate surveillance system ever devised against its own people.