Category Archives: Online Supplement

Is the Fourth Amendment Really for Sale? The Defense Intelligence Agency’s Purchase of Commercially Available Data

By US Army Maj. Steven Szymanski

Introduction

The commercial data market has exploded.  Data has even been dubbed “the oil of the 21st century.”[1]  Aiming to capitalize on this blossoming industry, data brokerage companies have emerged to collect, collate, and sell personal data from nearly everyone who uses the Internet.[2]  New online data auctions occur thousands of times per day, selling everything from users’ shopping preferences to their actual location.[3] 

Many Americans have experienced the eerie phenomenon of receiving advertisements for regional businesses during cross-country travel.  The realization that our smart phones and applications are tracking our movements is becoming common knowledge.  While discount offers for local steakhouses may be welcomed during road trips, serious questions have emerged about the lack of regulation in this new market and the potentially ominous uses of commercial cellular location data.  This piece focuses on a slice of this larger discussion by examining whether intelligence agencies should be permitted to purchase the commercial data without a court order.[4]   It concludes that policy makers should preserve the U.S. intelligence community’s (IC) ability to purchase this information, while imposing substantial oversight to ensure that American privacy interests are preserved.

In early 2021, Senator Ron Wyden queried the Defense Intelligence Agency (DIA) to confirm: (1) whether DIA purchases commercial location data from apps installed on consumers’ smart phones; and (2) whether the agency construes the landmark Carpenter v. U.S. decision as “only applying to location data obtained through compulsory legal process” and not to “data purchased by the government?”[5]  In January, the DIA affirmatively answered both questions, reasoning that Carpenter’s scope was limited to law enforcement and did not prohibit the IC’s authority to collect commercially available information to support intelligence requirements.[6] 

Likely and predictably dissatisfied with the DIA’s response, Senator Wyden introduced the “Fourth Amendment is Not for Sale Act” (hereinafter, the Act) on April 21, 2021.[7]  If passed, the Act would prohibit law enforcement and intelligence agencies from purchasing commercially available data without a court order or warrant.[8]  Though the bill has been met with bipartisan endorsement and heralded by privacy advocates, the DIA should petition Congress to preserve its nearly four-decade authorization to collect publicly available information (PAI) for intelligence purposes to support national security objectives. 

Part I of this article will briefly summarize the landmark Carpenter v. U.S. ruling.  Part II will analyze the DIA’s position that its purchase of commercial data is lawful.  Part III will describe the Department of Defense’s (DoD) current procedures to safeguard U.S. person information (USPI).  Part IV will examine the Act.  Finally, Part V will argue that prohibiting the DIA from purchasing commercially available data is imprudent and unnecessary.  Instead, Congress should direct that DoD’s existing privacy oversight mechanisms be supplemented by routine audits from the Privacy and Civil Liberties Oversight Board (PCLOB). 

I.  Carpenter v. United States

In 2018, Chief Justice John Roberts authored a 5-4 majority opinion in Carpenter v. U.S.[9]  According to the facts in the case, following the arrest of four suspects for a series of robberies, one suspect confessed and provided the FBI with his co-conspirators’ cell phone numbers.[10] The FBI then applied for three magistrate court orders to obtain “transactional records” which included their historic cellular cite location data (CSLI).[11]  The judges granted the orders, citing authority under the Stored Communications Act, finding that the government met its burden of providing “specific and articulable facts showing reasonable grounds to believe that the records sought were relevant and material to an ongoing criminal investigation.”[12]  On these grounds, the CSLI was admitted as evidence that Mr. Carpenter’s cell phone was in the vicinity of the crime scene during the date and time of the robberies.[13]

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Military Justice Since 1950: A Pyrrhic Victory?

By Eugene R. Fidell

With the major changes Congress enacted in the Military Justice Act of 2016,[1] perhaps it would be useful to try to sketch the arc of American military justice and its place in the national legal firmament since the Uniform Code of Military Justice (UCMJ) was enacted in 1950.[2] These comments are preliminary and reflect my personal views based on many years’ involvement with the military justice system. Not everyone will identify and arrange the data points the same way.

In the past, efforts have been made to characterize various periods, e.g., judicialization[3] or civilianization.[4] I would offer four basic phases, with leading figures for the first three. Like the Middle Ages, the Romantic Era, or the Industrial Revolution, these phases do not necessarily have bright-line start- or end-dates. In fact, they plainly overlap one another.

First, the period of reaction. I associate this initial period with Felix E. Larkin, for whom much of the credit for the UCMJ must go.[5] This period begins after World War II and ends with enactment of the Code five years later. This is largely a period of reaction to the abuses that were experienced in the administration of military justice during the war.[6] There were three primary features—

  • Creation of a civilian court of appeals[7]
  • Outlawry of unlawful command influence (UCI)[8]
  • Imposition of a single criminal code for all branches of the armed forces—although the services retained (and continue to retain) very substantial autonomy despite the ostensibly “uniform” code[9]

Second, the period of institution-building. I associate this period with Chief Judge Robert E. Quinn, the former Rhode Island Governor who led the Court of Military Appeals during its formative years.[10] The chief features of this period are—

  • The doctrine of “military due process”[11]
  • The related “Brosman doctrine” according to which the court was “freer than most” in picking the best rule of decision[12]
  • The court’s suprising willingness to entertain petitions for review that raise no legal issues
  • The related profligate use of the power to specify issues not raised by the parties[13]
  • Resistance to efforts by the Judge Advocate General’s corps to trim back the court’s powers[14]
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JNSLP Symposium—Shifting the Great Power Competition: Emerging and Continuing Threats with China, with Jim Steinberg

The Journal of National Security Law and Policy hosted its 2021 annual symposium this week, featuring a keynote discussion with James Steinberg, former US Deputy Secretary of State and University Professor of Social Science, International Affairs and Law at Syracuse University.

Steinberg and James Feinerman, Professor of Law at Georgetown University, sit down to discuss US-China relations, managing differences, and the ongoing power struggle between both nations.

The interview taps Steinberg’s wealth of experience with China to address the biggest challenges facing the Biden Administration and his recommendations for the way ahead.

Syracuse University College of Law Professor William C. Banks, Chair of the ABA Standing Committee on Law and National Security and Editor-in-Chief of JNSLP, provides opening remarks.