ICE bypasses Fourth Amendment by buying phone location data without warrants, Wyden reveals

PenLink sells location data collected from smartphone apps without users' knowledge or consent. The data comes from apps that users download voluntarily, but the privacy policies are often buried in lengthy terms of service that few users read. The business model represents a growing gray area where commercial data collection becomes government surveillance through indirect means. Citizen Lab 404 Media

ICE used the data to track undocumented immigrants without obtaining warrants, treating commercially available location data as if it were public information. The practice effectively created an end-run around the Fourth Amendment, which protects against unreasonable searches and seizures by the government. NPR DHS OIG 2023 report

Wyden demanded DHS explain how the program complied with Carpenter v. United States, the 2018 Supreme Court decision that requires warrants for historical cell-site location data. The Carpenter ruling had established that cell phone location records are protected by the Fourth Amendment, but ICE argued the decision didn't apply to data purchased from commercial brokers. Carpenter v. United States – SCOTUS opinion Sen. Wyden letter

ICE argued the data was commercially available and therefore not protected by the Fourth Amendment. The agency claimed that once data enters the commercial marketplace, it loses its constitutional protection. This interpretation represented a significant expansion of government surveillance power under the guise of using 'publicly available' information. Citizen Lab 404 Media

Privacy advocates called the program a constitutional violation and surveillance overreach. The Electronic Frontier Foundation and ACLU demanded immediate suspension of the program and congressional investigation. They argued that the commercial availability of data should not determine whether constitutional protections apply. EFF NPR

DHS officials claimed the data was used only for immigration enforcement targeting serious criminals. The agency said the program helped locate undocumented immigrants with criminal convictions who posed public safety threats. However, internal documents suggested the data was used much more broadly in routine immigration enforcement operations. 404 Media DHS OIG 2023 report

Wyden requested all documents about ICE's contracts with PenLink and similar data brokers. He also demanded information about how much the program cost and how many people had been monitored. The senator's investigation aimed to determine whether ICE had violated federal privacy laws or congressional appropriations restrictions. Sen. Wyden letter NPR

The revelation came amid broader concerns about government surveillance of digital data. The PenLink program was just one example of how federal agencies were exploiting commercial data markets to bypass traditional privacy protections. Civil liberties groups argued that the growing surveillance ecosystem required comprehensive privacy legislation rather than case-by-case challenges. EFF Citizen Lab

The program highlighted how immigration enforcement had become a testing ground for expanded surveillance powers. Because immigration proceedings have fewer constitutional protections than criminal cases, agencies often test new surveillance techniques there first. The success of these techniques in immigration enforcement often leads to their adoption in other law enforcement contexts. 404 Media NPR

Congressional staffers suggested the program could violate the Privacy Act and other federal privacy laws. Some lawmakers were already drafting legislation to close the loophole that allowed ICE to purchase location data without warrants. The political backlash threatened to complicate other DHS surveillance programs that relied on similar legal justifications. Sen. Wyden letter EFF

The case illustrated how technology had outpaced privacy law. The Fourth Amendment was written in an era of physical searches, but modern digital surveillance created new privacy risks that the founders never imagined. Resolving these tensions would require either new legislation or new Supreme Court decisions to clarify how constitutional protections apply in the digital age. Carpenter v. United States – SCOTUS opinion Al Jazeera