The Pentagon recently signaled to a U.S. senator that it could not publicly reveal if or how it was buying access to Americans’ car, phone, and online metadata, only that, whatever it was doing, it was not violating the 4th amendment and also definitely didn’t need a warrant to do it.
Sen. Ron Wyden (D-OR) has been trying to get to the bottom of how and why the Department of Defense procures data through the private sector. Wyden became interested in the issue after multiple media reports showed that agencies like the Department of Homeland Security, the U.S. Special Forces, and, comfortingly, an agency in charge of drone strikes, have all been turning to the private sector to purchase data from ordinary apps. In January, the Defense Intelligence Agency admitted to buying access to the location data of phones based in the U.S.
Since he began looking into this, Wyden has apparently been engaged in an ongoing back-and-forth with the Pentagon, during which time he’s learned some things about the agency’s data collection practices. On Thursday, Wyden sent a letter to Secretary of Defense Lloyd J. Austin III, asking the top defense official to share with the American public information that had recently been shared with his office. That letter, first reported on by Vice News and also shared with Gizmodo, shows the U.S. congressman urging Austin to publicly release “information about the Department of Defense’s (DoD) warrantless surveillance of Americans.” You can read the full letter here.
Wyden previously sent a letter to the Under Secretary of Defense for Intelligence and Security in February, requesting information about federal data purchasing practices. The DoD originally responded to Wyden’s letter on March 3, but only answered three out of the eight questions he had asked. Then, on April 21, the agency sent another letter answering the remaining questions, but designated one answer “Classified” and the rest as “Controlled Unclassified Information,” a designation for data that “requires safeguarding or dissemination controls.”
The end result is that most of the Pentagon’s explanations about if or how data collection is being conducted will not be revealed to the public—at least for now. Certain members of Wyden’s staff with security clearances are allowed to see the more sensitive answers, but “some of the answers the DoD provided were given in a form that means Wyden’s office cannot legally publish specifics on the surveillance,” Vice reports.
The apparently forbidden questions that Wyden’s office requested information about concern the specifics of if or how data is being collected, and by what agencies. Questions like: “Other than DIA, are any DoD components buying and using without a court order location data collected from phones located in the United States? If yes, please identify which components.” Or: “Are any DoD components buying and using without a court order location data collected from automobile telematics systems (i.e. internet connected cars) from vehicles located in the United States? If yes, please identify which components.”
In the section of answers that could be shared publicly, the Department of Defense makes its case for why whatever it’s doing is justified. Wyden’s office asked for “a copy of the legal analysis supporting” the DoD’s theory about its data collection practices. The agency responded:
In general, the collection and retention of data by Defense Intelligence Components enable the conduct of authorized intelligence activities (specifically, foreign intelligence and counterintelligence activities), which are subject to applicable law, regulation, and policy, including the Fourth Amendment (as understood through the Carpenter opinion and other relevant case law) and the Attorney General-approved procedures in DoDM 5240.01. We understand that DIA has already provided Senator Wyden’s staff with a document that states DIA’s legal conclusions as regards the DIA activity in question. We have no other analyses to provide in response to this question.
Civil rights groups have raised questions about these practices, questioning whether the government is violating the 4th amendment, which ostensibly protects Americans against “unreasonable searches and seizures.” Wyden recently proposed “The Fourth Amendment is Not For Sale Act” which would legally prohibit the “End-Run of Courts by Government Agencies Buying Americans’ Data,” and outlaw this form of data collection without a warrant, Vice reports.