The Department of Homeland Security (DHS) is using cellphone location data to track immigrants attempting to cross the United States-Mexico border. DHS is purchasing consumer data and allying with private corporations and the government. In a memo obtained by BuzzFeed News, Chad Mizelle, DHS’s attorney, mentioned that Immigration and Customs Enforcement (ICE) officers can look up and track phone location data activity and decide how they want to proceed. Mizelle also mentioned that DHS can access cellphone location data without a warrant and it does not violate Fourth Amendment protection from unreasonable searches and seizures. Within the memo, Mizelle describes how immigration authorities have ways to minimize the risk of violating the Fourth Amendment. He pointed out that the agency could only use this data when other techniques were used and failed. Other methods employed to reduce the risk of violating the Fourth Amendment could include requiring a supervisor's signature when a lengthy search is done, limit their searches, and limit tracking to where there is a credible suspicion for a law enforcement investigation.
The partnership between the government and private corporations is raising a red flag. The use of cellphone location data on immigrants could mean that the government could potentially bypass Fourth Amendment protection and track what Americans do every day. The government would know where people sleep, who they spend their time with, what time they go to the doctor, and the name of their provider; the government would have access to nearly every aspect of a person’s life.
The way that DHS uses this system is by having an investigator examine the data. The investigator only knows that devices and phones visited certain locations which means that the investigator does not necessarily know the identity of the individuals that visited those locations. Investigators have to then match the location tracking data to property records to figure out if they have the correct person.
Custom and Border Protection (CBP) said in a statement that the agency obtained limited access to commercial telemetry with a limited number of licenses. The spokesperson also mentioned that this access does not include tower data and it does not include the user’s identity. Officers are allowed to access this date on a case-by-case basis but are limited on what they see. The spokesperson mentioned that enforcing the law at the US-Mexico border is CBP’s responsibility and the use of cellphone tracking data supports their efforts.
DHS purchased more than $1 million worth of software from Venntel in 2019 for an intelligence program run by CBP. This program monitors individuals and cargo at the border. This year, CBP purchased $475,944 worth of software with more licenses from Venntel.
DHS and ICE use an advertising identifier data (AdID), purchased lawfully from information brokers, that includes information as to where an individual is located, the device that is being used, the language that is spoken, and websites from which items are purchased. This specific information does not allocate the name of an individual. DHS claims that AdID is anonymized and only shows a specific location within a specific period, this does not directly tell ICE who the person is but the user can be identified when the data is compiled and analyzed. AdID can be a sensitive tool to use because it can tell officers where a person lives, where they go, where they work, and what places they visit frequently.
Private companies are gathering information about phone users where they have surveillance powers, and so does the U.S. government. The idea of private companies and the government collaborating to track the American people should be a primary concern.
Chad Mizelle stated that the use of the data could be a benefit when deciding when and where to conduct immigration enforcement. Mizelle also stated that law enforcement should analyze the use of geolocation data and the legal problems that could emerge under the Privacy Act. In Carpenter v. the United States, a Supreme Court opinion ordered that law enforcement officers must obtain criminal warrants to obtain cellphone location data in most cases from cellphone carriers. Chief Justice John Roberts said in this opinion that geolocation data provides a very intimate window of an individual’s life; it does not only reveal the person’s movements, but also their political-religious, familial, professional, and sexual associations. Chief Justice Roberts also stated that the use of geolocation data violates the privacy of life for many Americans. Mizelle does not agree with Chief Justice Roberts, he posits that the ruling does not apply to CBP or ICE because these agencies purchased data that is commercially available, therefore a warrant is not required.