US Spies Are Lobbying Congress to Save a Phone Surveillance ‘Loophole’

The US Supreme Court has previously ordered the government to obtain search warrants before seeking information that may “chronicle a person’s past movements through the record of his cell phone signals.” In the landmark Carpenter v. United States decision, the court found that advancements in wireless technology had effectively outpaced people’s ability to reasonably appreciate the extent to which their private lives are exposed.

A prior ruling had held that Americans could not reasonably expect privacy in all cases while also voluntarily providing companies with stores of information about themselves. But, in 2018, the court refused to extend that thinking to what it called a “new phenomenon”: wireless data that may be “effortlessly compiled” and the emergence of technologies capable of granting the government what it called “near perfect surveillance.” Because this historical data can effectively be used to “travel back in time to retrace a person’s whereabouts,” the court said, it raises “even greater privacy concerns” than devices that can merely pinpoint a person’s location in real-time.

Crucially, the court also held that merely agreeing to let data be used “for commercial purposes” does not automatically abrogate people’s “anticipation of privacy” in their physical location. Rather than apply this view to location data universally, however, the government has allowed defense and intelligence agencies to assume a contradictory view, as their activities were not a factor in Carpenter’s law enforcement-focused ruling.

A growing number of American lawmakers have argued in recent weeks that the US intelligence community is itself more or less facilitating the erosion of that privacy expectation—that location data is protected from unreasonable government intrusion—mainly by ensuring it isn’t.

Andy Biggs, who chairs a subcommittee on federal government surveillance in the House of Representatives, says the federal government has “inappropriately collected and used Americans’ private information” for years. A whole range of agencies, including the Federal Bureau of Investigation and Drug Enforcement Agency, have been exploiting “legal loopholes,” he says, to avoid oversight while amassing “endless amounts of data.”

A senior advisory group to the director of national intelligence, Avril Haines, the government’s top spy, stated in the report declassified last month that intelligence agencies were continuing to consider information “nonsensitive” merely because it had been commercially obtained. This outlook ignores “profound changes in the scope and sensitivity” of such information, the advisors warned, saying technological advancements had “undermined the historical policy rationale” for arguing that information that is bought may be freely used “without significantly affecting the privacy and civil liberties of US persons.”

Haines’ office did not respond to multiple requests for comment. In a statement last month, the director said she was working to implement key recommendations from her advisors, and believed that Americans should be given “some sense” of the policies affecting the collection of their personal data. Much of the framework for dealing with commercial purchases by the intelligence community would be disclosed publicly when it is eventually finalized, she said.

The practice of paying businesses to spy on US citizens is one of several concerns lawmakers say they’ll be exploring this fall during what’s slated to be a long and heated debate over one of the government’s most powerful surveillance tools: Section 702 of the Foreign Intelligence Surveillance Act.

The Mozilla Foundation joined the chorus of civil society groups calling for reforms of the 702 program today, saying FISA’s current process is “overbroad” and “restricted only by weak legislation and executive orders that, experience has shown, do not create real accountability.”