03.21.19

Wyden, Paul, Leahy, Daines Question DOJ Over Government Surveillance of Americans’ Location Information

Bipartisan Group Of Senators Ask When the Government Can Collect Americans’ Location Information Without A Warrant

Washington, D.C. –Sen. Ron Wyden, D-Ore., Sen. Rand Paul, R-Ky., Sen. Patrick Leahy, D-Vt., and Sen. Steve Daines, R-Mt., today asked the Department of Justice a series of questions about when and how the government can collect information about Americans’ location, in a bipartisan letter to Attorney General William Barr.

The senators asked Attorney General Barr how the Supreme Court’s decision in Carpenter v. United States, that the government must get a warrant to obtain location information about Americans in most circumstances, has impacted federal government surveillance, including by the NSA.

“In light of the Carpenter decision and the recognition of Americans’ legitimate interest in privacy around [cellular location information], the American public deserves to know how the intelligence community treats these records and other sensitive metadata in national security cases,” the senators wrote.

Read the full letter here.

The senators asked for responses to the following questions:

1.            Intelligence community officials have previously stated publicly that the government does not collect CSLI as part of the call detail record program conducted under Section 215. Are there any other legal authorities under which the intelligence community collects CSLI or other data revealing the location of Americans or their phones? If yes, please describe which type of court order or other legal process the intelligence community uses to obtain the following types of location data:

a.            Historical CSLI for targets in the United States.

b.            Real-time or prospective CSLI for targets in the United States.

c.             Real-time or prospective GPS “pings” for targets in the United States.

d.            Real-time location data collected with a cell-site simulator or “Stingray.”

e.            Cell tower dumps, revealing every subscriber in the vicinity of one or more cell sites for a given period of time, for targets in the United States.

f.             CSLI or other location data associated with U.S. persons located outside the United States.

2.                  Intelligence community leaders previously stated publicly that NSA has not collected bulk location data using Section 215. Has the intelligence community engaged in the bulk, domestic collection of CSLI or other data revealing the location of Americans or their phones, using any other legal authority? If yes, please describe the type of court order or other legal process that authorized such bulk collection.

3.                  Has the Department of Justice (DOJ) promulgated guidance regarding how the Carpenter decision should be interpreted? If so, please provide us with any relevant memorandums or guidance, including any relevant changes made to the Federal Bureau of Investigation’s Domestic Investigations and Operations Guide.

4.                  Has the intelligence community altered any aspect of its collection of call detail records (which do not include CSLI) under Section 215, in light of the Supreme Court’s recognition in Carpenter that certain records held by third party companies deserve 4th amendment protection? If so, please provide a description with how such collection was altered.

5.                  Has the intelligence community altered any other collection programs or its use of any type of data, including collection pursuant to the Patriot Act, FISA, or under Executive Order 12333, in light of the Carpenter decision? If so, please provide a description with how such collection or use was altered.

6.                  Has DOJ determined whether or not Carpenter should be applied only in criminal investigations as opposed to in national security or foreign surveillance cases? If so, what is the basis for that conclusion? Please provide all relevant memoranda, legal analysis, or guidance related to how the DOJ reached this interpretation.

7.                  Has DOJ interpreted Carpenter to mean that it is not a Fourth Amendment search for the government to obtain large quantities of call detail records (rather than CSLI)?

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