In 2010 and 2011, the National Security Agency conducted a secret pilot program that collected the location data of Americans’ cellphones, Charlie Savage of The New York Times reports.
Locational data is the ultimate form of metadata (i.e. data about communications as opposed to content) because it can reveal where a person has been over months or years .
Combined with other metadata, someone's entire life can be documented over time .
An official familiar with the test project told Savage that the program's purpose was to see how the location data would flow into the NSA's systems, adding that the data was never used as part of any investigation.
The spy agency decided against making the program official, intelligence officials told the Times.
Savage notes that it is unclear how much data was collected or whether the spy agency has kept that information.
NSA officials have repeatedly said that the agency chooses not to collect cell location data, despite having the capability.
As CIA Chief Tech Officer Ira "Gus" Hunt told a GigaOm conference in March: " You are aware of the fact that somebody can know where you are at all times because you carry a mobile device, even if that mobile device is turned off. You know this, I hope? Yes? Well, you should."
Senator Ron Wyden (D-Ore.), who receives classified briefings as a member of the Senate Intelligence Committee and has repeatedly raised concerns about cellphone location tracking, said there was more to know about the matter than the NSA let on.
“After years of stonewalling on whether the government has ever tracked or planned to track the location of law-abiding Americans through their cellphones, once again, the intelligence leadership has decided to leave most of the real story secret — even when the truth would not compromise national security,” Mr. Wyden said in a statement.
A controversial surveillance method
State and local law enforcement agencies already track cell data without a warrant.
Last year the American Civil Liberties Union obtained records from about 250 U.S. law enforcement agencies in the U.S., finding that that "virtually all" of them agencies track the location of cell phones with data obtained from wireless carriers.
In July the Fifth Circuit Court of Appeals held that individuals have no reasonable expectation of privacy over their location data. The Obama administration has also argued that warrantless tracking of the location of Americans' mobile devices is perfectly legal.
The arguments rely on the "third-party doctrine," which states that citizens don't have a privacy expectation in any information turned over to a third party. The notion is derived from the 1979 Supreme Court decision Smith v. Maryland, which ruled that it was legal for telephone companies to give numbers dialed to the police.
Critics, including Supreme Court Justice Sonia Sotomayor, note that the standard is outdated.
"This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks," Sotomayor wrote in the 2012 case United States v. Jones.
Here's what D.B. Grady, who co-authored the book "Deep State: Inside the Government Secrecy Industry" with fellow investigative journalist Marc Ambinder, told Business Insider:
"As for their argument that 'We would never do such a thing,' I dare say that 10 years ago the NSA would have argued: 'Collect 90 million phone records [from Verizon]? We would never do that. That's ridiculous.' And here we are today."
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