Government Halted Warrantless Cell Data Collection, Wyden Told

U.S. intelligence agencies stopped collecting historical cell tower and GPS information without a warrant because of a 2018 Supreme Court decision, the Office of the Director of National Intelligence told a senator.

The high court raised “significant constitutional and statutory issues” about the practice in Carpenter v. United States, Benjamin T. Fallon, the office’s assistant director for legislative affairs, wrote in a letter released Nov. 14 by Sen. Ron Wyden (D-Ore.). The court ruled that holding such historical data for more than seven days required a warrant under the Fourth Amendment.

Intelligence officials can still obtain historical cell tower and GPS information if they get a probable cause-based warrant, Fallon said.

The letter coincides with a debate about whether Congress should reauthorize surveillance authorities under USA FREEDOM Act. The surveillance authority allows intelligence officials to obtain tangible documents, such as business and call detail records, but not underlying communications. Congress is expected to extend the law, but it’s unclear for how long.

The Department of Justice and the intelligence community haven’t reached a legal conclusion as to whether Carpenter restricts the future collection of cell tower data, Fallon wrote.

Wyden welcomed the move to stop obtaining historical information, but he criticized the government’s position that Carpenter doesn’t explicitly exclude future data collection.

“The government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance,” Wyden said in a Nov. 14 statement.

Congress “needs to write a prohibition on warrantless geolocation collection into black-letter law,” he said.