Senators Warren & Markey Push for Investigation of U.S. Customs and Border Patrol’s Warrantless Use of Phone Location Data

The following is a media release from Sen. Ed Markey and Sen Elizabeth Warren’s offices. Both were elected by voters in the Commonwealth of Massachusetts to serve the state in Washington DC in the US Senate. Both are Democrats.

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WASHINGTON DC – United States Senators Elizabeth Warren (D-Mass.), Ron Wyden (D-Ore.), Sherrod Brown (D-Ohio), Edward J. Markey (D-Mass.), and Brian Schatz (D-Hawaii) requested an inspector general investigation into U.S. Customs and Border Protection’s (CBP) warrantless tracking of phones in the United States. (Text of Letter (PDF))

As revealed by public contracts, CBP has paid Venntel, a government contractor, nearly half a million dollars for access to a commercial database containing location data mined from applications on millions of Americans’ mobile phones. CBP officials also confirmed the agency’s warrantless tracking of phones in the United States using Venntel’s product in a September 16, 2020 call with Senate staff.

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In 2018, the Supreme Court held in Carpenter v. United States that the government’s acquisition of significant quantities of historical location data from a person’s cell phone is a search under the Fourth Amendment and therefore generally requires a warrant supported by probable cause.

“CBP is not above the law and it should not be able to buy its way around the Fourth Amendment,” the senators wrote in a letter to Department of Homeland Security (DHS) Inspector General (IG) Joseph V. Cuffari. “Accordingly, we urge you to investigate CBP’s warrantless use of commercial databases containing Americans’ information, including but not limited to Venntel’s location database.”

The senators also asked the DHS IG to investigate any legal analysis CBP’s lawyers performed before the agency started to use this surveillance tool and how CBP was able to begin operational use of Venntel’s location database without the DHS Privacy Office first publishing a Privacy Impact Assessment.

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In September 2020, Senators Warren and Wyden successfully pressed for an inspector general investigation into the Internal Revenue Service’s use of Venntel’s commercial location tracking service without a court order.

The lawmakers’ letter is the latest in conducting oversight of the collection and sale of sensitive data by data brokers. 

• In August 2020, Senators Warren and Wyden, along with Representatives Carolyn B. Maloney (D-N.Y.) and Mark DeSaulnier (D-Calif.), sent a letter to data broker Mobilewalla regarding a recent report by the company that indicated they were surreptitiously collecting information on Black Lives Matter protesters via their mobile devices.
• In July 2020, Senator Warren also joined Senator Wyden urging the Federal Trade Commission to investigate widespread privacy violations by companies in the advertising technology industry that are selling private data about millions of Americans.

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