In Carpenter v. United States, where the Government obtained the location information from wireless carriers, the court held that the government must generally obtain a warrant supported by probable cause before acquiring a user's cell-site location information records under the Fourth Amendment. But what happens when the Government purchase anonymized location data from a private marketing companies? It is uncertain whether one can apply the Carpenter’s ruling as there are factual differences. The purpose of this paper is to discuss about the current issues in these gray areas.

Location Data Collected from a Cell Phone and the Fourth Amendment

-- By HyojungKim - 14 Mar 2022

Introduction

A cell phone collects and stores very intimate and personal data including location history, personal conversations, photos and even food preference. There is a huge business making a money with collected location data. At least 75 companies receive anonymous, precise location data from apps whose users enable location services to get local news and weather or other information. These companies sell the data to advertisers. The global market for Location Based Advertising estimated at $63.9 Billion in 2020, and is predicted to reach $133 Billion by 2026. This poses serious privacy concerns as cell phone goes wherever its user goes, making it possible to track every detail of its user. In Carpenter v. United States, where the Government obtained the location information from Carpenter’s wireless carriers, the court held that the government must generally obtain a warrant supported by probable cause before acquiring a user's cell-site location information records under the Fourth Amendment. But what happens when the Government purchase anonymized location data from a private marketing companies? It is uncertain whether one can apply the Carpenter’s ruling as there are factual differences. The purpose of this paper is to discuss about the current issues in these gray areas.

The government seems to have circumvented the Carpenter’s ruling by purchasing location data from a commercial company

After Carpenter, the Government have simply purchased location data from marketing companies gathered from several apps, instead of getting a search warrant for wireless carriers. The DHS and IRS had purchased cellphone location data for law-enforcement purposes from 2017. The IRS attempted to identify and track potential criminal suspects by purchasing location database. A commercial broker, a company called Venntel, contained location information on millions of U.S. mobile devices, drawn from games, weather apps and other common mobile applications.

There is legal uncertainty about whether the IRS or DHS should obtain warrants under the Fourth Amendment and Carpenter ruling. The Carpenter court noted that the decision is a narrow one, and it does not express a view on matters not before the court such as other business records that might incidentally reveal location information and other collection techniques involving foreign affairs or national security. Unlike Carpenter v. United States, The data DHS and IRS purchased did not come from wireless carriers but from private data collecting companies. Also, the data DHS used may involve national security. Most of all, the data here is anonymized, not revealing names and cellphone numbers.

Anonymized data and identification

Anonymized data is not always anonymous. A whole collection of cellphone location data can identify users by tracking their routes for many days. They could attach a name to an anonymous dot, by seeing where the device spent nights and using public records to figure out who lived there. If the data is completely anonymous, why would the IRS and DHS have purchased not useful location data? If the data is anonymous, then it is not useful. But if the data is useful, then it poses a problem of possibility of bypassing the Fourth Amendment. The fact that IRS had another contract with Digital Envoy for an archive database subscription to a product used to pinpoint users’ geographic location in 2020 shows the data is useful indeed.

The basic purpose of the Fourth Amendment is to safeguard the privacy and security of individuals against arbitrary invasions by governmental officials. Although data does not reveal names and cellphone numbers and IRS and DHS has not purchased specific individual’s location data, data is not anonymous anymore if users can be identified through collecting and analyzing data. Essentially, there is no difference in obtaining the location data from wireless carriers and marketing companies in that they can serve the same purpose in law enforcement and enable arbitrary invasions by governmental officials. Therefore, Carpenter’s ruling can be applied to anonymized data if the Government can identify the user and use data to track location of the user.

Third-party doctrine and an option to opt-out from tracking

In IRS and DHL case, law-enforcement agencies have concluded that they don’t need a warrant because consumers technically can opt out of such location tracking unlike Carpenter. Regarding the third-party doctrine, the Carpenter court did note that the cell phone location information was not truly “shared” as a cell phone logs a cell-site record by dint of its operation, without any affirmative act on the part of the user beyond powering up. In fact, these days, phones provide an option to opt out from tracking when using apps. It can be argued that if the users choose not to opt out from tracking, the users are voluntarily turning over information, and therefore have no legitimate expectation of privacy. However, some apps are simply impossible to opt out. How is Google map or a weather app supposed to give information when one chooses not to provide location data?

Furthermore, the court said that the third-party doctrine should not be mechanically applied, and the court should consider (1) the exhaustive chronicle of location information casually collected by wireless carrier (2) “the nature of the particular documents sought” and limitations on any “legitimate 'expectation of privacy' concerning their contents.” The data obtained from wireless carriers are basically not different from the accumulation of data of several apps, and no one would have expected the Government to look into one’s long time location history through combination and collection of several apps they used. What the Carpenter court worried about was that with GPS information, the time-stamped data provides an intimate window into a person’s life, and the Government can access deep repository of historical location information at practically no expense or warrant. In this sense, the purchase of accumulated data from several apps are just as same as data from wireless carriers in Carpenter.

Conclusion

The Government seems to have been circumventing Carpenter’s ruling and the Fourth Amendment by simply purchasing location data, and attorneys of IRS and DHS has reviewed if they are violating one. This poses an even greater privacy invasion since the Government can collect enormous amount of data. Although whether the Government actually violated the Fourth Amendment is undecided yet, their action is against what the Fourth Amendment seeks to secure, which is the privacies of life against arbitrary invasions by government officials.

References

GlobeNewswire? , "Global Location Based Advertising (LBA) Market Report 2021: Market to Reach $133 Billion by the Year 2026, from $63.9 Billion in 2020" (Feb. 10, 2022) https://www.globenewswire.com/news-release/2022/02/10/2382926/28124/en/Global-Location-Based-Advertising-LBA-Market-Report-2021-Market-to-Reach-133-Billion-by-the-Year-2026-from-63-9-Billion-in-2020.html#:~:text=The%20global%20market%20for%20Location,12.8%25%20over%20the%20analysis%20period.

Byron Tau, "Homeland Security Watchdog to Probe Department’s Use of Phone Location Data", The Wall Street Journal (Feb. 7, 2020) https://www.wsj.com/articles/homeland-security-watchdog-to-probe-departments-use-of-phone-location-data-11606910402

Byron Tau, "IRS Used Cellphone Location Data to Try to Find Suspects", The Wall Street Journal (Jun. 19, 2020) https://www.wsj.com/articles/irs-used-cellphone-location-data-to-try-to-find-suspects-11592587815

Lee Fang, "IRS, DEPARTMENT OF HOMELAND SECURITY CONTRACTED FIRM THAT SELLS LOCATION DATA HARVESTED FROM DATING APPS", The Intercept (Feb. 18, 2022) https://theintercept.com/2022/02/18/location-data-tracking-irs-dhs-digital-envoy/

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