DHS watchdog to probe agency’s tracking of Americans’ phone data without a warrant

The Department of Homeland Security’s (DHS) internal watchdog will probe the Department’s tracking of Americans’ phone data without a warrant.

In a letter to five senators, the DHS’s Office of Inspector General (OIG) said it will determine if the DHS “and its components have developed, updated, and adhered to policies related to cell-phone surveillance devices.”

The investigation was first reported by The Wall Street Journal. 

The OIG is also looking into the use by DHS of open source intelligence which includes the “use of information provided by the public via cellular devices, such as social media status updates, geo-tagged photos, and specific location check-ins.” 

The watchdog opened the investigation in response to an inquiry from Democratic Sens. Ron Wyden (Ore.), Elizabeth Warren (Mass), Edward Markey (Mass.), Sherrod Brown (Ohio) and Brian Schatz (Hawaii) in October. 

The senators asked for an investigation after it was revealed that DHS paid nearly half a million dollars to use a database from government contractor Venntel to search for information from phones without a court order.

Customs and Border Protection (CBP) officials confirmed to Senate staff in September that it was tracking phones using Venntel’s product.

“If federal agencies are tracking American citizens without warrants, the public deserves answers and accountability,” Wyden said in an emailed statement. “I won’t accept anything less than a thorough and swift inspector general investigation that sheds light on CBP’s phone location data surveillance program.”

In 2018, the Supreme Court held in Carpenter v. U.S. that collecting significant quantities of historical data location from cell phones is a search under the Fourth Amendment, and requires a warrant.

At the same time, courts had previously been divided on the type of court order necessary to obtain location data, which is something the Democratic senators pointed out in their October inquiry. 

The Justice Department has argued that a lesser court order based on a reasonable suspicion standard was enough, while some courts have held that surveilling historical location data required a warrant. 

The inquiry is the latest into the government’s tracking of location data without a warrant. The Treasury Department’s Inspector General for Tax Administration is currently investigating the IRS’s use of Venntel’s data for criminal enforcement, the Journal notes, and several congressional investigations into warrantless tracking are underway.