In December 2020, letters from the Office of the Director of National Intelligence (DNI) revealed that the federal government used Section 215 of the PATRIOT Act to spy on us and track websites we visited in 2019, so it isn’t all that surprising to learn that analysts for another government agency (Defense Intelligence Agency) have been spying on our smartphones over recent years without a warrant, according to an unclassified memo recently released to a top Senate Democrat.
Section 215 and other provisions of the PATRIOT Act were originally set to expire on December 15, 2019, but in one of Washington’s classic year-end budget band-aids to avoid a “government shutdown,” Republicans hid a 90-day extension of the act inside a 2000-page omnibus loaded with spending priorities that broke nearly every promise Trump and the Republican Party made in 2016.
As the new March 15, 2020 deadline approached, Trump and the Republican Party put NSA spying back on the menu, and they renewed their commitment to make it permanent. Fortunately, their tyrannical effort failed, allowing Section 215 and other key parts of the PATRIOT Act to expire.
But Big Brother Washington didn’t let that stop them from continuing to conduct unconstitutional data collection because, as TheHill.com is reporting, the Defense Intelligence Agency has been purchasing databases of U.S. smartphone location data without a warrant even without Section 215.
DIA analysts have searched American location data five times in the past 2 1/2 years, according to the document released Friday by Sen. Ron Wyden (D-Ore.), a member of the Senate Intelligence Committee.
The Oregon Democrat had asked the agency whether it was interpreting the 2018 Supreme Court decision in Carpenter v. United States to mean that obtaining data from a third-party broker rather than a phone company does not require a warrant.
“DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially-available data for intelligence purposes,” the agency responded in the memo.
In response to this revelation, Wyden is prepared to introduce legislation in the coming weeks that offers new safeguards for U.S. citizens’ data in a bill known as the “Fourth Amendment is Not for Sale Act.”
Gee… Remember when so-called conservatives like Ted Cruz or Mike Lee or Rand Paul would do something like this? TheHill.com continues with a reminder that the expiration of Section 215 still needs to be addressed:
The release of the DIA memo comes amid a broader debate over reauthorizing three investigative tools whose legal authority lapsed last year. One of those tools is Section 215, which allows intelligence agencies to covertly obtain court orders to collect any business records deemed relevant to national security.
Friday’s confirmation that a government entity is purchasing commercially available location data buttresses a recent wave of reporting on the issue.
In the weeks leading up to the original expiration of Section 215, BuzzfeedNews.com reported in October 2020 that the Department of Homeland Security (DHS) — the post-9/11 creation of George W. Bush — was using real-time cellphone geolocation data to track people. According to DHS, obtaining and using the information was perfectly legal and required no warrant to purchase it, despite the obvious threat to the Fourth Amendment.
The Department of Homeland Security is purchasing consumer cellphone data that allows authorities to track immigrants trying to cross the southern border, which privacy advocates say could lead to a vast “surveillance partnership” between the government and private corporations.
In an internal memo obtained by BuzzFeed News, the DHS’s top attorney, Chad Mizelle, outlined how ICE officials can look up locations and track cellphone data activity to make decisions on enforcement.
Mizelle also believes the agency can use the data without obtaining a warrant or violating the Fourth Amendment, which protects the public against unreasonable searches and seizures. That logic could lay the groundwork for the government to use the same data to track everyday Americans, raising red flags among privacy advocates.
The memo offers a window into the use of new forms of technology to help ICE and Customs and Border Protection advance their enforcement aims at the border and beyond. But the use of the data has long been controversial, and its deployment within DHS has caused alarm.
Adam Schwartz, a senior staff attorney for the Electronic Frontier Foundation, told BuzzFeed News the memo is “deeply disturbing.”
“It’s essentially a secret effort by members of the government to justify the construction of this terrible surveillance partnership between the government and these corporations,” he said. (emphasis mine)
Even as the authority for the government to spy on us under the PATRIOT Act and collect this data was inactive, lawmakers and privacy groups were concerned that Trump might use an earlier executive order to illegally surveil Americans. For example, Executive Order 12333, issued in 1981, has been used in the past to conduct operations without statutory authorization or congressional oversight.
And based on Trump’s stated position in the summer of 2019 about government spying, this was a valid concern:
Exclusive: The Trump administration has urged Congress to make permanent the expiring legal authority that empowers the National Security Agency to gain access to logs of Americans’ domestic communications. For now, it's set to expire in December. https://t.co/tRGGECS3gW
— The New York Times (@nytimes) August 15, 2019
Trump and the Republican Party had no problem with the government spying on smartphones without a warrant, but Trump’s out of office now, so why worry? Not so fast. It’s important to remember that Republicans are no different than Democrats when it comes to killing liberty — a troubling thought now that Joe Biden is in the White House.
Republicans worked closely with Biden’s former boss, Barack Obama, on ways to expand DHS and government power to spy on Americans as a way to “prevent” domestic terrorism and advance the far-left’s gun control agenda.
Following the Orlando massacre, then-Department of Homeland Security Secretary, Jeh Johnson, capitalized on the gun-control hysteria by tying it to the gun control issue and declaring that the denial of Second Amendment rights needed to be considered a matter of homeland security:
“We have to face the fact that gun control has to be a part of homeland security. We need to do something to minimize the opportunity for terrorists to get guns in this country.”
In other words, disarming law-abiding Americans will disarm terrorists.
Fast forward to today. Last week, Biden ordered several intelligence agencies to “review” domestic terrorism in the US in the wake of the January 6 Capitol siege. When you consider that terrorism is what gave birth to liberty-killing tyranny post-9/11, how long will it be before we see Republicans join Democrats to expand the PATRIOT Act and domestic spying on smartphones, computers, etc. in the name of safety?
On the subject of how the federal government is violating our constitutional rights under the PATRIOT Act, John Whitehead, founder of the Rutherford Institute, has written that “[it] violates at least six of the ten original amendments known as the Bill of Rights — the First, Fourth, Fifth, Sixth, Seventh and Eighth amendments — and possibly the Thirteenth and Fourteenth as well.”
If this latest revelation about federal government spying on smartphones without a warrant under the umbrella of the PATRIOT Act teaches us anything, it’s that politicians in both parties can manipulate and pervert seemingly clear legal standards and rules for the benefit of the state.
The PATRIOT Act is certain to be brought up in Congress again. And with Joe Biden putting Obama’s liberty-killing band back together along with the damage done over the past four years by Trump’s Obama-lite approach to the issue, we need to be vigilant in our fight against it if we want to see the end of government spying on smartphones without a warrant.
David Leach is the owner of the Strident Conservative. He holds people of every political stripe accountable for their failure to uphold conservative values, and he promotes those values instead of political parties.