Watchdog questions legality of using cellphone data without warrants

Law enforcement agencies may be on shaky legal ground when purchasing cell phone location data without a warrant, according to a new Treasury Department watchdog report.

The agency’s inspector general said in the report reviewing the Internal Revenue Service’s use of a commercial platform, Venntel, to track devices that a 2018 Supreme Court case may block warrantless tracking using data from apps.

The Carpenter v. United States case holds that warrants must be obtained by law enforcement to get data from wireless carriers, and many government lawyers have argued that it does not apply to GPS data taken from apps.

The watchdog’s report, which came at the request of Sens. Ron Wyden (D-Ore.) and Elizabeth Warren (D-Mass.), suggests that that interpretation is flawed.

“I appreciate the IRS has committed to follow the recommendations of the inspector general and ensure any future warrantless surveillance is subject to a formal review by lawyers at IRS headquarters,” Wyden said in a statement to The Hill. “But I’m troubled agency lawyers were so cavalier about American’s privacy rights that they green-lit the warrantless purchase of location data with such minimal legal analysis. This shows again that Americans need strong new laws protecting our 4th Amendment rights to ensure government credit cards don’t replace court orders.”

The Wall Street Journal reported on the IRS inspector general report.

The IRS used Venntel’s services as an investigative tool starting in 2017 but ended the practice a year later.

The agency’s lawyers had argued “that data obtained from marketers of information like Venntel is not subject to a warrant because the data is collected by apps loaded on cellphones to which the phone users voluntarily granted access,” the watchdog report found.

The Supreme Court rejected a similar argument about location data compiled by wireless carriers in its Carpenter decision.

“The court’s rationale was that phone users do not truly voluntarily agree to share the information given the necessity of phones in our society,” the IRS inspector general wrote in the report. “Courts may apply similar logic to GPS data sold by marketers.”

There has been a wave of recent revelations that the government is buying cell phone location data collected by apps without warrants.

The Defense Intelligence Agency revealed in a memo made public last month that it accessed American location data five times in the past 2.5 years.

The Department of Homeland Security and Federal Bureau of Investigation have reportedly made similar purchases.