The ACLU has filed a lawsuit against the Department of Homeland Security (DHS), Customs and Border Protection (CBP), and Immigration and Customs Enforcement (ICE). The lawsuit alleges that under the Trump administration, these agencies purchased cell phone data that tracked the location of millions of immigrants.

The ACLU filed the lawsuit last Wednesday and is asking the different agencies named in it to release records about the cell phone data they purchased as well as what they did with it. According to the lawsuit, the information purchased used cell phone apps to gather specific locations of immigrants for the purpose of surveillance as seen fit by immigration enforcement. The lawsuit goes on to say that this compilation of data brings up questions about protections provided by the Fourth Amendment.

The ACLU explains in the lawsuit, “The agencies’ purchases raise serious concerns that they are evading Fourth Amendment protections for cell phone location information by paying for access instead of obtaining a warrant.”

The story first broke earlier in 2020 when the Wall Street Journal reported that federal agencies had purchased access to a database from a government contractor, Venntel. It’s unclear if data was purchased from other vendors as well. In the WSJ report, DHS was exposed for spending about half a million dollars on products from Venntel to track data from American cell phones without a warrant. CBP also confirmed that they were using Venntel’s products as well.

How is the data collected?

With the cell phone being a staple in everyone's life, it has never been easier to access someone's personal information, let alone track them. Countless apps, including Snapchat, Facebook, and Instagram, use location and tracking tools which are often advertised as a service that benefits the consumer.

But what many consumers don't realize is that the location information stored on apps and collected by these tech companies is often sold to third-parties. These third-parties will often package that data location information and go on to sell it to other companies. Most times, data is sold for commercial purposes. In this case, that data was sold to the US government and according to the ACLU, it was done so for the purpose of tracking individuals for both immigration and security purposes.

The ACLU goes on to emphasize the complexity of data collection in a statement shared in a recent article about the lawsuit. In the article, the ACLU explains why government collection of this information is an issue, especially concerning immigrants. According to the ACLU, “These practices raise serious concerns that federal immigration authorities are evading Fourth Amendment protections for cell phone location information by paying for access instead of obtaining a warrant. There’s even more reason for alarm when those agencies evade requests for information — including from U.S. senators — about such practices. That’s why today we asked a federal court to intervene and order DHS, CBP, and ICE to release information about their purchase and use of precise cell phone location information. Transparency is the first step to accountability.”

Fourth Amendment Protections Called Into Question

The ACLU highlights in the lawsuit that the questions about Fourth Amendment protections aligned with the 2018 Supreme Court case Carpenter vs United States. In that case, the Supreme Court held that collecting large amounts of location data from cell phones requires a warrant as it is a search under the Fourth Amendment.

The ACLU has been probing the agencies for reports on the data collection for over nine months. When the ACLU submitted its request, the government agencies neglected to respond. This is another area of focus the ACLU insists needs to be resolved.

The ACLU maintains that access to these records is vital for the American public's understanding of how surveillance through cell phone data is used. Additionally, even non-citizens who live in the country should have an awareness of how that data is being used, whether it is being used to track them for immigration purposes or otherwise.

An investigation into the different agencies’ use of this data was opened by five Democratic senators, Ron Wyden (Ore.), Elizabeth Warren (Mass.), Ed MarkeySherrod Brown (Ohio), and Brian Schatz (Hawaii) in October.

Senator Wyden explained, “If federal agencies are tracking American citizens without warrants, the public deserves answers and accountability. I won’t accept anything less than a thorough and swift inspector general investigation that sheds light on CBP’s phone location data surveillance program.”

In response to the lawsuit, a spokesperson for the CBP agency said they could not provide a comment on an ongoing investigation. DHS and ICE have not given a response to the lawsuit. However, the DHS Office of Inspector General did share a letter with the five inquiring Democratic senators that the DHS’s internal watchdog will look into DHS’s involvement with tracking phone data of Americans without a warrant.