Since last year, the US National Security Agency (NSA) has stopped collecting electronic location data from US citizens’ cell phones without a warrant.
This is according to a recently declassified letter from the Office of the Director of National Intelligence, signed by Benjamin T. Fallon, the Assistant Director for Legislative Affairs.
This letter was composed in response to Sen. Ron Wyden (D-OR), a privacy advocate in Congress, who asked the director to clarify how the Supreme Court’s decision was “being applied to the intelligence community.”
In the NSA’s letter, it is stated: “In light of Carpenter, given the significant constitutional and statutory issues the decision raises for use of that authority to obtain such data, the Intelligence Community has not sought CSLI records or global positioning system (GPS) records pursuant to Title V of FISA since Carpenter was decided.”
The letter goes on to state that the NSA will now fetch information “based upon a showing of probable cause.”
In a statement for The Daily Beast, Sen. Wyden said: “The Intelligence Community has now publicly revealed that, since the Supreme Court decision more than a year ago, it hasn’t used Section 215 of the Patriot Act to track Americans,”
In the 2018 case of Carpenter v. United States, the Supreme Court ruled against the accessing of mobile data without warrant as a violation of the Fourth Amendment with a 5-4 majority.
While the NSA states that it has not collected such data since the ruling, it does not rule it out as a future prospect, arguing that “neither the Department of Justice nor the Intelligence Community has reached a legal conclusion” as to whether the ruling prevents it from accessing cell phone geo-locations.
Prior to this, the US intelligence services had been justifying its harvesting of data under Title V of the Foreign Intelligence Surveillance Act (FISA) / Section 215 of the US PATRIOT Act.
Sen. Wyden went on to express his frustration at the Intelligence Community’s reluctance to accept the ruling as something that applies to them, saying, “At the same time, the government is hedging its bets by not formally acknowledging that the Supreme Court case applies to intelligence surveillance.”
The extent of intelligence data collection was revealed in 2013 through the Edward Snowden surveillance disclosures. The US Patriot Act is set to expire next month, along with key features of the 2015 US Freedom Act that permits the acquisition of cellphone data, with questions about amendments and restrictions left in the air for before its potential renewal.