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CBP Refuses To Tell Congress How It's Tracking Americans Without a Warrant (vice.com) 72

An anonymous reader quotes a report from Motherboard: U.S. Customs and Border Protection is refusing to tell Congress what legal authority the agency is following to use commercially bought location data to track Americans without a warrant, according to the office of Senator Ron Wyden. The agency is buying location data from Americans all over the country, not just in border areas. The lack of disclosure around why CBP believes it does not need a warrant to use the data, as well as the Department of Homeland Security not publishing a Privacy Impact Assessment on the use of such location information, has spurred Wyden and Senators Elizabeth Warren, Sherrod Brown, Ed Markey, and Brian Schatz on Friday to ask the DHS Office of the Inspector General (DHS OIG) to investigate CBP's warrantless domestic surveillance of phones, and determine if CBP is breaking the law or engaging in abusive practices.

The news highlights the increased use of app location data by U.S. government agencies. Various services take location data which is harvested from ordinary apps installed on peoples' phones around the world, repackages that, and sells access to law enforcement agencies so they can try to track groups of people or individuals. In this case, CBP has bought the location data from a firm called Venntel. "CBP officials confirmed to Senate staff that the agency is using Venntel's location database to search for information collected from phones in the United States without any kind of court order," the letter signed by Wyden and Warren, and addressed to the DHS OIG, reads. "CBP outrageously asserted that its legal analysis is privileged and therefore does not have to be shared with Congress. We disagree." As well as not obtaining court orders to query the data, CBP said it's not restricting its personnel to only using it near the border, the Wyden aide added. CBP is unable to tell what nationality a particular person is based only on the information provided by Venntel; but what the agency does know is that the Venntel data the agency is using includes the movements of people inside the United States, the Wyden aide said.

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CBP Refuses To Tell Congress How It's Tracking Americans Without a Warrant

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  • by LatencyKills ( 1213908 ) on Monday October 26, 2020 @05:25PM (#60651964)
    I'll admit to having slept through some high school civics classes, but in the past several years it seems to me that Congress has essentially zero power. Subpoenas go ignored, allocated budget money can be reallocated later against their wishes (I seem to remember something about Congress holding the purse, but apparently that's not the case), and here a US agency seems to admit they're breaking the law, but will not say how or when (or particularly even why). Why is it the people making these presentations are not escorted from the hearing room to a cell underneath the house to cool their heels until their mind changes? Congress is responsible for oversight of other branches of government, but if their search for information can be thwarted with a simple, "No, we're not sayin'," what purpose does it serve?
    • Re: (Score:2, Insightful)

      by alvian ( 6203170 )
      Nothing gets done without the executive branch. Congress can make the laws they want and courts can make all the ruling against the actions of the government and nothing will happen without the executive branch. Same thing happened with the segregation in the US. US Supreme Court ruled that it was illegal under the Constitution but the judiciary branch doesn't have the power to enforce the laws.
    • by tiqui ( 1024021 ) on Monday October 26, 2020 @06:30PM (#60652192)

      The congress is in total control - if they want some document they are constitutionally entitled to have from some part of the executive branch, they need only ask for it, and then if it's not provided they can go straight to refusing to fund that part of the executive. If the FBI won't hand over a document, congress can defund the FBI, and even cancel their pensions if they want. They COULD take the intermediate and slow step of trying to drag the judicial branch into the fight by suing for the requested document, there's no requirement for them to take that step. The dirty little secret is that the congress lacks the balls to pull that trigger. Each senator dreams of being President someday and would not want congress doing this to HIM/HER. Every senator and member of the House also dreads having their office bombarded by angry calls from anybody affected by their actions (for many of them, re-election and a long career in DC is the REAL goal). They have all the power our founders gave them, but they simply refuse to use it and instead prefer to whine on the internet and in the press and try to use this as fuel to energize their base funders/voters.

      Stop letting politicians manipulate you!

      While you're at it: STOP ANSWERING POLLSTERS! Pollsters are NOT trying to help YOU - they are helping politicians and their consultants figure out how to more-skillfully manipulate you into voting for them or sending them contributions. They do NOT use polls to figure out policies, the use polls to figure out how to "message" better, and which special interest groups need to be more narrowly targeted with better lies.

    • No... a single house of congress has limited power, but both together can remove the executive. The problem the US has currently is a single-party-rule problem. The minority party controls the executive branch and enough of the other two branches to prevent them from exercising their restraint on the executive.
      • When a Party controls the Presidency and the Senate, they're the majority party, not the minority party... the Democrats only have a majority in the House of Representatives and the bureaucracy.

        • lolwut?

          When a Party controls the Presidency and the Senate, they're the majority party, not the minority party...

          No... They're the party in with a majority of representatives in the Senate, and with a member in the White House. Nothing more, nothing less.

          the Democrats only have a majority in the House of Representatives

          Correct. You managed to properly use the word majority this time. Congratulations.

          and the bureaucracy.

          Oh god.
          [citation needed]

          • 2/3 of the bill-passing infrastructure (President, Senate, House) equals a majority of it.

            Citation provided [opensecrets.org]. Political donations 68% Democrats, 32% Republicans.

            • I'm well aware of that statistic- it just doesn't say what you think it says.
              All it says is that a majority of the dollars that come from Federal employees, go to Democratic Federal campaigns.
              That does *not* mean or imply that the majority of Federal employees support democrats.

              That is *one* possible answer out of several.

              If you look at 2014 and before, you'll see that spending from US government Employees was close to 50/50.
              I present a more likely explanation:
              People in the Government find Trump ant
              • > People in the Government find Trump antithetical to the institution they work for.

                Exactly right. And a majority of Americans find the people in the Government antithetical to the country they love.

                Fireworks will be bright.

                • Exactly right. And a majority of Americans find the people in the Government antithetical to the country they love.

                  I'm not sure that you speak for a majority of Americans, or are correctly characterizing their opinion.
                  I do not suspect that a majority of Americans hold the career workers of the Federal Government accountable for the ills in the institution.

                  They'll be bright over Fort Sumpter when you open fire, and they'll be bright over Appomattox when we accept your surrender. Again.

    • by detritus. ( 46421 ) on Monday October 26, 2020 @07:11PM (#60652288)

      Congressman Justin Amash has spoken at great lengths about this, which is also why he's leaving Congress because it's absolutely ineffective.

      He's a process nerd and that resonates strong with me as a geek. He looks at the way Congress doesn't function like an engineering/structural problem.

      He was on Andrew Yang's podcast recently which explains this in detail.

      https://youtu.be/g5aRvUu2daM?t... [youtu.be]

      Everything is run by the majority leaders, nothing is debated anymore, no amendments get through, it's all decided by the top. Congress rarely even reads bills, and any legislation that amends exisisting law is presented in such a backwards way by lawmakers that it makes it very hard to disseminate the revisions. Imagine having a github repository and instead of seeing someone's committed changes line by line in an easy to digest and understandable format from before and after, you only get a document that references files and line numbers which leaves staffers on the hunt to compile this information themselves. Now imagine having to do this with very little time, and be expected to understand and vote coherently on a bill that may be thousands of pages long.

      It's insanity.

      • It's also something that nobody realizes. I bet a lot of people making voting decisions and paying the bulk of the tax revenue is still working on the Schoolhouse Rock model of government; and the millenials and beyond think that the US government is behind the times because they still use Facebook, when a lot of them ... well, I have no idea what level of technology they stopped at.

    • Either house of congress can subpoena people, and if they refuse to show up, they can hold that person in contempt-of-congress (with just 1 of the houses).

      If they still don't show up, they can send the deputy sergeant-at-arms to arrest and detain the person.

      Our current politicians are too afraid of the political ramifications of using their constitutionally-granted powers to actually do what their jobs require of them.

    • Good thing you were born in the Internet era, after sleeping through those classes. Apparently separation of powers has broken down somewhat [lawsandsausagescomic.com], and we're watching it continue to happen.

      If you buy into the rationale presented, I think they're saying it's an unanticipated possible outcome of how the U.S. government structure was set up to manage power dynamics during "runtime".

    • We, the Voters, have to respond by electing a President that will enforce Accountability and the people who didn't follow the law will either go to jail, lose their jobs, or be under some sort "consent decree" that governs their future behavior on the matter.

      Congress has power. Lots of power. Sometimes enforcing those powers takes time. But the pendulum swings and the wheel grinds.

    • > are not escorted from the hearing room to a cell underneath the house to cool their heels until their mind changes

      Common lore is that the Congressional Jail was turned into a conference room during the 1930's as Roosevelt was implementing Moussilini's method.

      Read Washington's farewell address about political parties, or, even better, Bastiat's /The Law/. It is short and the free-culture .mp3 is quite a good narration. Save you ten years of polisci.

      Congress barely represents any constituents beyond fund

  • Just no (Score:5, Insightful)

    by Impy the Impiuos Imp ( 442658 ) on Monday October 26, 2020 @05:44PM (#60652044) Journal

    The only way to even remotely dream of getting away with this constitutional violation is Congressional oversight, and there are members with the requisite security to see things.

    So no, you don't get to spy on Americans without a warrant and no Congressional oversight.

    • by Jack9 ( 11421 )

      > The only way to even remotely dream of getting away with this constitutional violation is Congressional oversight

      I'm not sure why you labeled this a constitutional violation. This is a legal violation, which has nothing to do with the US Constitution. Some heads might roll, but that's not going to be under the guise you have suggested and Congress isn't going to be doing it. I love the kangaroo court congressional subpoenas, but they are pointless, both metaphorically and practically (most of the time)

      • by chill ( 34294 )

        Because the SCOTUS ruled in Carpenter v US [qz.com] that location data on cellphones is protected under the 4th Amendment and thus a violation of the Constitution.

        • by Jack9 ( 11421 )

          Where is the determination that location data is being collected? At best, there's a bad-faith assumption with these assertions. It's entirely possible that they purchase 3rd party data that's NOT location data, specifically. If you can't imagine good-faith possibilities, you might not have a compelling viewpoint. Either way, that's not relevant to the issue of Congress not having any power to compel this kind of disclosure.

          I guess there's nothing to be done about people who continue to make wildly politici

          • by chill ( 34294 )

            The article and Congressional request revolves around location data, though it is unclear whether or not it is relevant to Carpenter.

            CBP said that the legal justification for this surveillance without a warrant is privileged, the Wyden aide said. Wyden's office also asked if CBP had taken a position on whether location data sold by Venntel didn't fall under the Supreme Court ruling of Carpenter v United States, which said that location data requires a warrant; CBP also said that information was privileged, the Wyden aide said.

            CBP is stonewalling Congressional oversight on the very question, so it is a legitimate assumption and not bad-faith at all. I can imagine good-faith possibilities, but CBP isn't saying "no" they're saying "none of your business", so they lose the benefit of my doubt.

  • by sit1963nz ( 934837 ) on Monday October 26, 2020 @05:45PM (#60652048)
    so...USA tracking its people is OK, but anyone else tracking their citizens is proof the USA has freedom ???
  • Comment removed based on user account deletion
    • by chill ( 34294 )

      No. It is the function that is unconstitutional -- illegal search and seizure -- not the source of the data set. There are things the public and private companies may have the the gov't needs special purpose (a warrant) for.

      Tracking citizens through cellphone location data without a warrant was already ruled illegal and unconstitutional in Carpenter v US [qz.com], 2018.

      • Comment removed based on user account deletion
        • by chill ( 34294 )

          I disagree. Before this got to the SCOTUS the Appelate Court ruled [wikipedia.org] "cell-site data -- like mailing addresses, phone numbers, and IP addresses -- are information that facilitate personal communications, rather than part of the content of those communications themselves", hence the SCA doesn't apply.

          Carpenter was specifically addressing Cell Site Location Information (CSLI). Simply washing data through a private third party doesn't strip it from the protections against gov't intrusion. The 4th Amendment is pr

    • Exactly.

      If the Government does it DIRECTLY, it's illegal.
      If the Government uses third party contractors ( private corporations like say. . . Facebook, Twitter, Google, et al ) then, in their eyes, it's all perfectly legal.

  • instead of derivative remakes and formulaic comics adpatations, then maybe I would care.
  • Fuck your democracy, that shits done and over with. Thanks for voting for all those congressmen who were âoetough on crimeâ and wanted to build âoethe biggest fucking military everâ Turns out that you now live as a DEBT SLAVE in a the worlds most massive prison society So enjoy it you fascist pieces of shit, itâ(TM)s what you as Americans wanted and voted for from the 1970s onward. In fact Biden played a big part in that
  • Because that's how you get a Contempt of Congress charge! FFS law enforcement in general in this country is completely out of control, they apparently think they're above the law.
  • Supremes already decided location data is protected by the 4th amendment. If the cops go out and buy a key to my house from, say, the locksmith who installed my door or whatever, they still cannot enter my house without a warrant to search. Where you get the data _from_ is immaterial to the constitutional issues.
  • About all the other Government agencies that track Americans without a warrant...

    Or better yet... just purchase the data from a "private" company.

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