The Department of Homeland Security is expected to stop buying access to data showing the movement of phones — a controversial practice that has allowed it to warrantlessly track hundreds of millions of people for years.
Since 2018, agencies within the department — including Immigration and Customs Enforcement, U.S. Customs and Border Protection and the U.S. Secret Service — have been buying access to commercially available data that revealed the movement patterns of devices, many inside the United States. Commercially available phone data can be bought and searched without judicial oversight.
Three people familiar with the matter said the Department of Homeland Security isn’t expected to buy access to more of this data, nor will the agency make any additional funding available to buy access to this data. The agency “paused” this practice after a 2023 DHS watchdog report pending a recommendation that they draw up better privacy controls and policies. However, the department instead appears to be winding down the use of the data.
DHS’ use of purchased mobile phone data has drawn concerns from within the agency’s privacy office that the practice was not compliant with a 2018 Supreme Court case. The court ruling said Americans have a reasonable expectation of privacy in geolocation data held by their cell carriers. But, as recently as September 2023, ICE had rebuffed the recommendation from the DHS inspector general to stop using commercially available location data, calling it “an important mission contributor to the ICE investigative process” that “can fill knowledge gaps and produce investigative leads that might otherwise remain hidden.”
ICE reversed course several months later, telling FedScoop in January that it had stopped buying data.
The data has been used to crack down on border tunnels and unlawful crossings, identify human trafficking routes, find undocumented immigrants who didn’t show up for immigration hearings, and, in some cases, used for criminal investigations by the Secret Service, as I first reported at The Wall Street Journal in 2020.
“The information that is available commercially would kind of knock your socks off,” said former top CIA official Michael Morell on a podcast last year. “If we collected it using traditional intelligence methods, it would be top-secret sensitive. And you wouldn’t put it in a database, you’d keep it in a safe.”
In documents that the American Civil Liberties obtained under the Freedom of Information Act, DHS said that agents and analysts using the data “were able to identify specific stash houses, suspicious trucking firms in North Carolina, links to Native American reservations in Arizona, connections in Mexico and Central America which were not known and possible [accomplices] and international links to MS-13 gang homicides.”
DHS’ internal watchdog opened an investigation after a bipartisan outcry from lawmakers and civil society groups about warrantless tracking. The inspector general’s report, released in September 2023, found that the department lacked adequate privacy controls on the use of the data and recommended that DHS stop using the data until such controls were adopted.
A DHS spokesperson declined to address whether the department would fully discontinue its use of this commercially available data: “The Department of Homeland Security is committed to protecting individuals’ privacy, civil rights and civil liberties. DHS uses various forms of technology in furtherance of its mission, including tools to support investigations related to, among other things, illegal trafficking on the dark web, cross-border transnational crime and terrorism. DHS leverages this technology in ways that are consistent with its authorities and the law.”
Privacy advocates have long derided the practice of buying data as an affront to the civil liberties and privacy of Americans.
Meanwhile, U.S. spy agencies are fighting to preserve the same capability as part of the renewal of surveillance authorities. A bipartisan coalition of lawmakers, led by Democratic Sen. Ron Wyden in the Senate and Republican Rep. Warren Davidson in the House, is pushing to ban U.S. government agencies from buying data on Americans.
The bill unanimously passed the House Judiciary Committee last year. Lawmakers are now trying to attach it as an amendment to the renewal of the U.S. electronic surveillance program, which expires in April. But they face resistance from the Biden administration and intelligence agencies. The top Democrat on the House Intelligence Committee, Rep. Jim Himes, said the proposal “would undermine some of the most fundamental and important activities of the intelligence community and law enforcement” in a letter to colleagues.
Recognizing the threat of other countries obtaining large amounts of data on Americans, President Joe Biden recently signed an executive order that would crack down on the transfer of Americans’ personal data to countries of concern like China and Russia. The House recently passed a bill 414 to zero that would do something similar, but the Senate hasn’t signaled whether it will take it up.
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Byron Tau is a reporter at NOTUS.