Intelligence agencies have stopped collecting cellphone data without warrants: letter

Intelligence agencies have stopped collecting cellphone data without warrants: letter
© Aaron Schwartz

Intelligence agencies have not collected any GPS records or other cell-site location data (CSLI) without a warrant since a 2018 Supreme Court decision involving cellphone privacy, according to a letter sent to Sen. Ron WydenRonald (Ron) Lee WydenSanders, 50 Democrats unveil bill to send N95 masks to all Americans Manchin told White House he would back version of billionaire tax: report Democrats look to scale back Biden bill to get it passed MORE (D-Ore.).

In the letter, made public Thursday, Benjamin Fallon, the assistant director of national intelligence for legislative affairs within the Office of the Director of National Intelligence, wrote that the intelligence community has “not sought CSLI records or global positioning system (GPS) records” since the Carpenter v. United States case was decided by the Supreme Court last year. 

In that case, the Supreme Court ruled 5-4 that the government violated the Fourth Amendment against unreasonable searches and seizures when it accessed historical cellphone location data without a search warrant. 

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Fallon wrote that the decision to stop collecting GPS and other location data was made “given the significant constitutional and statutory issues” that the Supreme Court decision raised.

Wyden originally wrote to former Director of National Intelligence Dan CoatsDaniel (Dan) Ray CoatsAn independent commission should review our National Defense Strategy Overnight Hillicon Valley — Scrutiny over Instagram's impact on teens Former national security officials warn antitrust bills could help China in tech race MORE in July to inquire whether, in light of the Supreme Court decision, the government would still be able to collect this type of data under Section 215 of the Patriot Act. 

Section 215 allows the government to order third-party companies to hand over data deemed relevant to an intelligence investigation.

Former intelligence contractor Edward Snowden revealed in 2013 that this authority had been used by the government to conduct mass surveillance on Americans. 

Section 215 is set to expire on Dec. 15, but it is unclear whether Congress will vote to reauthorize it. 

Wyden celebrated the intelligence community’s decision to stop collecting any cellphone location data on Thursday and called on Congress to permanently end the collection of this data.

“The Supreme Court has confirmed that tracking our movements without a warrant is unconstitutional,” Wyden said in a statement. “Now that Congress is considering reauthorizing Section 215, it needs to write a prohibition on warrantless geolocation collection into black-letter law.”

Wyden added that, “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.”

There will likely be a fight around repealing, reforming or renewing Section 215. A group of 20 Democratic lawmakers last week sent a letter to the leaders of the House Judiciary Committee urging them to repeal Section 215. 

In contrast, former DNI Coats in August urged Congress to reauthorize Section 215, arguing that its provisions give the intelligence community "key national security authorities.”

Coats also wrote that "as technology changes, our adversaries’ tradecraft and communications habits will continue to evolve and adapt. In light of this dynamic environment, the [Trump] Administration supports reauthorization of this provision as well."