A meaningful debate is starting to brew about law enforcement's use of commercially available cell phone data for purposes of criminal investigations across the country.
The data, called open-source intelligence by those who advocate for it, used to only be prepared and sold by brokers, generally to marketers and advertisers.
Information is sent daily from "phones, cars and other connected devices" to commercial brokers, The Wall Street Journal wrote this week. That data is then widely used in "finance, real-estate planning and advertising".
But recently, these brokers have created products specifically for law enforcement. The products have "increasingly been used to screen airline passengers, find and track criminal suspects, and enforce immigration and counterterrorism laws," according to the Wall Street Journal.
Agencies that are using the data, or considering use of the data, include the Department of Homeland Security, the Internal Revenue Service and the FBI.
Skeptics of the practice see it as akin to warrantless searches, with the Journal characterizing the practice as an "end run around the constitutional guarantees against unlawful warrantless searches".
Legislators don't seem to be amused about the practice. Sen. Ron Wyden and Sen. Rand Paul have, in response, proposed a bill called "the Fourth Amendment Is Not for Sale Act" that will require government entities to get a court order before buying U.S. cellphone data.
Jennifer Granick, the surveillance and cybersecurity counsel for the Speech, Privacy, and Technology Project of the American Civil Liberties Union, commented: “Police and prosecutors never brag when they misuse capabilities like this; we only hear about the successes they want us to know about.”
The ACLU has supposed Wyden and Paul's proposed bill. "Law-enforcement agencies should be overseen by courts when trying to obtain information on Americans—even if it is available for purchase," the ACLU has argued.
Meanwhile, the main governing law, the Electronic Communications Privacy act, already allows companies to disclose user data in a situation where “the provider reasonably believes than an emergency involving immediate danger of death or serious physical injury to any person justifies disclosure of the information.”
You can read the Wall Street Journal's full write up here.