US intelligence agencies won’t harvest US residents’ geolocation data in future investigations, revealed the US government this month. In fact, it hasn’t done so since last summer.
The last 18 months have seen significant changes to the US’s collection of phone location data. Since 1994, law enforcement agencies in the US had been able to access court records thanks to an amendment to the 1996 Stored Communications Act. Under this legislation, a judge could give prosecutors access if they could justify that call records were relevant and material to an ongoing investigation. That all changed in a lawsuit brought by Tim Carpenter, who was convicted in 2011 after federal prosecutors trawled location cell phone data, tying his phone to the time and location of several robberies. Carpenter sued in appeals court, claiming that the trawling violated his Fourth Amendment rights. He lost on appeal, but then the case went to the Supreme Court, which ruled in his favour in a 5-4 vote. That decision stopped the warrantless collection of phone location data by police and federal law enforcement, but what about for the intelligence community?
In 2001, section 215 of the USA PATRIOT Act amended Title V, Section 501 of the Foreign Intelligence Surveillance Act (FISA), allowing intelligence agencies to collect metadata on calls (known as call detail records, or CDRs) which it stores in repositories and secure networks. The NSA can query the metadata when it has reasonable suspicion that the call could be associated with foreign terrorist organizations. Section 215 is on the Congressional agenda right now because it is set to expire under the 2015 US Freedom Act, which was created to preserve the CDR program in a constrained form. Unless Congress renews Section 215 it will cease to exist on 15 December 2019.