Congress probing FBI collection of phone location data as J6 civil liberty concerns rise
Geofence warrants -- used to gather phone location records of all people in a certain vicinity -- are relatively new tool raising constitutional concerns,
The House Judiciary Committee on Thursday launched a broad inquiry into the FBI's use of "geofence warrants" to sweep up large buckets of Americans cell phone location data, a relatively new tool that is raising questions about search and seizure powers that date all the way back to the country's founding,
The tactic came to prominence during the Jan. 6 riot investigation when it was revealed more than 5,000 American phone devices had location data gathered by the FBI in a digital dragnet designed to identify anyone who was in or near the U.S. Capitol that fateful day.
That geofence warrant plus revelations that the FBI accepted bank records volunteered by a major bank without seeking a warrant or subpoena have trigged concerns of both liberals and conservatives of a modern-day end run around the 4th Amendment.
"The use of geofence warrants raises serious Constitutional concerns," House Judiciary Committee Chairman James Jordan wrote Attorney General Merrick Garland in a letter Thursday announcing the congressional inquiry. "First, location history data is not an exact science as the geo-location data represents only a probable estimation of a device’s location within a given radius and margin of error. Second, a geofence warrant is inherently tied to a specific location—not a known suspect, user, account, or crime.
"For that reason, among others, courts have wavered on whether searches pursuant to geofence warrants comply with the Fourth Amendment’s requirements of probable cause and particularity," Jordan added.
You can read the full letter here.
In an interview with Just the News, Jordan said the geofence warrant inquiry was part of a larger effort to help Congress modernize civil liberty protections in an era of unprecedented digital surveillance and technological data gathering that also includes bank records and the Foreign Intelligence Surveillance Act that was abused during the Russia collusion scandal.
"We know that regarding Jan. 6, a couple years ago that the FBI was looking to get your your phone data location, where you were in relation to the Capitol, were you around the Capitol," Jordan told the John Solomon Reports podcast. "And it was just sort of this blanket approach No predicate to say you know Sally Smith, or John Jones was here. We have reasonable belief they did this. We'd like to know we want to double check that. Nothing like that. Just a blanket.
"And then you couple this with what we learned from a testimony from a whistleblower at the FBI, a few months back, where Bank of America just turned over their customers debit card and credit card purchases in the DC area around Jan. 6 2021. I mean, this is scary stuff," he added. "It's so contrary to the principles that our country was founded on. Like, you can't just have the government sweep up everything about you trying to find out if you did something wrong. That's not how our system works.
"But it sure looks like that's what's happening in modern day America, particularly with this Biden administration."
Jordan's letter raised a second concern that geo-fence warrants may have been "weaponized for political ends" by the Justice Department, approved against conservatives and Trump protesters but not against liberal activists from the 2020 George Floyd riots.
"Federal law enforcement’s interest in geofenced data appears selective," he wrote. "For example, in 2020, Minnesota police sought a geofence warrant to investigate violent rioting in Minneapolis and the Bureau of Alcohol, Tobacco, Firearms and Explosives (ATF) used geofence warrants to investigate arson throughout Kenosha, Wisconsin. However, it seems that the FBI did not pursue geofenced data to investigate the violent crime occurring at federal facilities during a similar time frame.
"In contrast, the FBI readily used geofencing at an unprecedented scope and scale as a part of its investigation and prosecution of the events of January 6, 2021," he added.
Jordan is hardly alone, as civil libertarians on both sides of the political spectrum have raised opposition in recent months to the growing use of geofence warrants.
The left-leaning American Civil Liberties Union joined eight federal public defenders this year to ask a federal appeals court to exclude mobile device location data obtained from Google from a geofence warrant that helped nab a bank robbery suspect.
The nonpartisan, nonprofit Electronic Privacy Information also recently intervened in a Colorado case, warning that geofencing and another broad data gathering tool called "keyword warrants" -- where Americans searches of a certain term are swept up -- violate the 4th Amendment because they are too broad and lack probable cause.
"While advances in technology have potential to enhance our lives, the government and courts must guard against abuses, including invasive surveillance," EPIC wrote.