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The IRS is buying and using location data without a warrant

| Oct 30, 2020 | Criminal Defense

In 2018’s Carpenter v. United States, the U.S. Supreme Court ruled that law enforcement is generally not entitled to use cell site location information unless it obtains a warrant for the information. This means that state and federal law enforcement agencies cannot simply buy location information from third parties and use it against citizens.

In the past, government agents could use virtually any information they could order from a third party’s business records. For example, police have traditionally been able to order standard phone records from phone companies.

Cell site location, the majority of the Supreme Court said, is different because “seismic shifts in digital technology that made possible the tracking of not only [someone’s] location but also everyone else’s, not for a short period but for years and years.”

Yet it appears that the IRS’s Criminal Investigation division has nevertheless been purchasing cell site location date from third parties and using it in criminal tax investigations, according to VICE. The location data is collected by ordinary apps on people’s phones, like games and weather services. It is used by the apps’ creators for marketing purposes.

Senators demand investigation

Senators Elizabeth Warren and Ron Wyden recently demanded that the IRS’s Inspector General service investigate the practice. This occurred after the Criminal Investigation division revealed to Wyden that it had been using third-party location data to identify criminal suspects.

The IRS’s Criminal Investigation division has a broad mandate to investigate tax crimes, identity theft, bankruptcy fraud and other federal offenses.

The agency had apparently been using the location data to track where certain phones are located at night. This works as a proxy for where the owners live. Then, the division would use other data sources to identify the owner of the phone.

It is unclear what legal argument the IRS has used to justify the warrantless searches. The Inspector General service has specifically said they will find out, according to VICE. To the extent allowed by law, the Inspector General will report back to Warren and Wyden.

VICE also reports that U.S. Customs and Border Protection has been buying access to cell location data from the same third-party vendor to track cellphones outside of U.S. borders.

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