The Technology 202: ACLU sues DHS over purchase of cellphone location data used to track immigrants

“It’s critical we uncover how federal agencies are accessing bulk databases of Americans’ location data and why,” Nathan Freed Wessler, senior staff attorney with the ACLU’s Speech, Privacy, and Technology Project, said in a statement. “There can be no accountability without transparency.”

Senate Democrats, such as privacy advocate Sen. Ron Wyden (D-Ore.), had written a letter to DHS asking for more information on how such data was being used. On Wednesday morning, they disclosed that the department’s inspector general would take up the matter.

“If federal agencies are tracking American citizens without warrants, the public deserves answers and accountability,” Wyden said in a 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.”

Government agencies typically need a warrant to access customer data directly from tech companies. But some have found a workaround by looking to buy similar information from third-party companies, a practice the ACLU argues deserves greater scrutiny and may in some cases be illegal.

Debates over how much access law enforcement should have to citizens’ private information are as old as the Constitution itself. But they’ve taken on greater urgency in the digital era, particularly after Edward Snowden’s revelations about the government’s systematic surveillance of American citizens.

The ACLU argues the privacy battle goes beyond understanding how agencies use location data to enforce immigration laws. The group also seeks to “assess whether the government’s purchase of this sensitive data complies with constitutional and legal limitations and is subject to appropriate oversight and control.”

The ACLU has been trying to obtain more records about how government agencies have been using this data for more than nine months. But the group says those agencies have not shared any responsive documents to the organization’s Freedom of Information Act requests.

“We’re asking the agencies to turn over all records related to their purchase and use of cellphone location data, including contracts, policies and procedures for use, communications with
companies, legal analyses, and more,” the nonprofit explained in a blog post.

The data is collected from apps running on people’s phones. Often apps — including for games, weather and e-commerce — sell the data they’re collecting to data brokers, which then sell it to government agencies, according to the ACLU’s lawsuit. 

The Wall Street Journal’s Byron Tau and Michelle Hackman reported in February that ICE had used such data to identify immigrants who were later arrested, and CBP had employed it to look for cellphone data in specific areas, such as zones of the desert that border Mexico. 

DHS did not immediately respond to a request for comment about the ACLU lawsuit. The agency and its counterparts acknowledged to the Journal in February that it had bought location data, but it declined to discuss how it was being used in law enforcement. CBP told the Journal it had privacy measures in place to ensure that it only accesses a small amount of location data, and that the data it uses is anonymized. 

“While CBP is being provided access to location information, it is important to note that such information doesn’t include cellular phone tower data, is not ingested in bulk and doesn’t include the individual user’s identity, “a CBP spokesman told the Journal. “Tower data from cellphone companies, which can locate a specific phone, has been singled out by the Supreme Court for extra protection.”

The group argues the agencies may be violating the Fourth Amendment in obtaining such data through the private sector and circumventing a traditional warrant process. The organization argues the agencies may be violating a precedent set in the Supreme Court’s 2018 decision in Carpenter v. United States, which determined that law enforcement agencies can’t request location information from a cellphone company without obtaining a search warrant. 

“If law enforcement agencies can buy their way around the Fourth Amendment’s warrant requirement, the landmark protection announced by the Supreme Court in Carpenter will be in peril,” the ACLU wrote in a statement. 

Senators began scrutinizing the agencies’ use of location data earlier this year. Several Senate Democrats led by Wyden earlier this year wrote a letter to Joseph V. Cuffari, the DHS inspector general, looking to gain greater insight into any legal analysis conducted to ensure the CBP’s use of location databases complied with the law. Senators said CBP asserted such analysis was privileged, and they disagree. 

“CBP is not above the law and it should not be able to buy its way around the Fourth Amendment,” the senators wrote. 

Trump called the law known as Section 230, which protects Internet companies from liability for the content users post, “a serious threat to our National Security & Election Integrity” in a pair of late night tweets, Tony Romm reports.

The president’s ultimatum to Congress “transformed a critical national security debate into a political war over his unproved allegations that Silicon Valley’s technology giants exhibit systemic bias against conservatives,” Tony writes. Both Republicans and Democrats have questioned the efficacy of the decades-old law for the modern Internet and have floated proposals for changing it. Republicans have seized on the debate as a means to rein in social media giants like Facebook and Twitter.

President Trump has repeatedly called on Congress to overhaul the law. Earlier this year Trump also signed executive order targeting the law.

Already Democrats in Congress have criticized Trump’s declaration. “I’d like to start at for the Blazers, but it’s not going to happen either,” Wyden said in a statement. “It is pathetic that Trump refuses to help unemployed workers, while he spends his time tweeting unhinged election conspiracies and demanding Congress repeal the foundation of free speech online.”

The material, which uses hashtags such as #keepamericasexy, could threaten the social media platform’s desire to grow its advertising business, Craig Timberg, Drew Harwell and Rachel Lerman report.  Parler, which conservatives are promoting as an alternative to Twitter, formerly banned pornography but recently loosened its terms of service to allow most legal content.  

Major social networks, such as Twitter, have automated systems and armies of human moderators to weed out spammy behavior and policy violations, but Parler outsources its moderation to volunteers. Searches of hashtags popular with QAnon including #sextraffickking and #ww1wga also turned up pornographic images. Some explicit videos began playing automatically with no label or warning. 

“When you say, ‘We don’t moderate content,’ you are inviting this content,” said Hany Farid, a University of California at Berkeley computer science professor who has helped develop image-detection technology used by social media sites. “My prediction is they will be overrun with this stuff.”

The moderation issues could leave the platform susceptible to becoming a source of child pornography, Farid says.

Amy Peikoff, the chief policy officer for Parler, said the site would not “knowingly allow it to be used for any criminal content.”

Three of the initial cases deal with hate speech, a long-standing issue for the social media platform. The decisions will be issued in the “coming months,” according to a news release.

The Oversight Board, which operates independently of Facebook, is designed to operate as a “Supreme Court” for users who want to appeal content decisions.

The pieces of content removed by Facebook for hate speech that will be reviewed include:

• A screenshot of two tweets from former Malaysian Prime Minister Mahathir Mohamad that violated the site’s policy on hate speech by stating “Muslims have a right to be angry and kill millions of French people for the massacres of the past.”
• Photos of a deceased child lying on the beach with text asking why there wasn’t retaliation against China for its treatment of Uighur Muslims.
• Allegedly historical photos with a caption “indicating disdain for Azerbaijani people.”

The independent board has received 20,000 cases since opening for requests in October, according to a news release. Hate speech made up “the most significant proportion of appeals,” Facebook told Reuters.

All of the cases will be open to public comment.

The board has another big question to answer: What do horses have to do with all of this? If you have an answer, please let us know!

The ruling is a win for the tech industry, which largely spoke out against the restrictions. Twitter and more than two dozen other tech companies and organizations filed an amicus brief on behalf of the U.S. Chamber of Commerce’s legal challenge last month, arguing that shutting out foreign talent would hurt U.S. companies.

 A California federal judge says the administration ignored key procedural steps including allowing affected parties to weigh in before enacting the rule.

“High-skilled work visas are vital to American businesses’ continued efforts to battle the COVID-19 pandemic and rebuild our economy,” TechNet President and CEO Linda Moore said in a statement. “Today’s ruling is another victory in stopping Trump Administration policies that seek to restrict the ability of employers to fill critical positions while we work to grow our domestic STEM pipeline.” 

Salesforce plans to combine the popular chat interface with its existing enterprise software, Heather Kelly reports. Slack CEO Steward Butterfield will stay on to lead Slack within Salesforce. Slack is Salesforce’s largest acquisition in the company’s 21-year existence. 

The technology would give Salesforce a stake in the growing workplace communications technology market, which includes Microsoft Teams, Google and Zoom.

The company’s leaders, including chief executive Ben Silbermann, and members of the company’s board “personally engaged in, facilitated or knowingly ignored the discrimination and retaliation against those who spoke up and challenged the Company’s White, male leadership clique,” the shareholders allege in the complaint.

The investors say that the misconduct harmed the company’s financial position and reputation with users. 

The lawsuit brought by the Employees’ Retirement System of Rhode Island also accuses Silbermann of “abdicating his fiduciary duties” by allegedly ignoring discrimination.

“He repeatedly placed himself before the Company, surrounding himself with yes-men and marginalizing women who dared to challenge Pinterest’s White, male leadership clique,” it states.

The culture resulted in retaliation against employees who raised pay concerns, the lawsuit says. This past summer, two former Pinterest employees accused the company of discrimination and retaliation for speaking out about unequal pay. Former chief operating officer Francois Bougher is suing the company for gender discrimination.

The company is conducting an independent review “regarding our culture, policies, and practices,” LeMia Jenkins, global head of communications at Pinterest, wrote in a statement.  

“Pinterest’s leadership and Board take their fiduciary duties seriously and are committed to continuing our efforts to help ensure that Pinterest is a place where all of our employees feel included and supported,” Jenkins wrote.

The group, which included three former members of Congress, sent a letter to the Department of Justice warning that “misguided antitrust pursuits could have a serious impact on our state and its economy.” The letter demonstrates a brewing backlash against Texas Attorney General Ken Paxton’s battle against the tech company. Texas joined the Justice Department’s federal antitrust lawsuit in October. 

• The Senate Commerce Committee will meet to discuss the nomination of Nathan Simington to the Federal Communications Commission today at 10 a.m.
• The Atlantic Council will hold an event on the incoming U.S. administration and the future of supply chains in the Americas on Dec. 9 at 2 p.m.

An Internet classic returns