Feds Tracking Your Credit Card Use Without Search Warrants

A document uncovered in a Freedom of Information Act request demonstrates the extent to which Federal law enforcement works outside the requirements of the Constitution.

Wired Threat Level blogger Ryan Singel reports on some rather disturbing information uncovered thanks to a Freedom of Information Act request:

Federal law enforcement agencies have been tracking Americans in real-time using credit cards, loyalty cards and travel reservations without getting a court order, a new document released under a government sunshine request shows.

The document, obtained by security researcher Christopher Soghoian, explains how so-called “Hotwatch” orders allow for real-time tracking of individuals in a criminal investigation via credit card companies, rental car agencies, calling cards, and even grocery store loyalty programs. The revelation sheds a little more light on the Justice Department’s increasing power and willingness to surveil Americans with little to no judicial or Congressional oversight.

For credit cards, agents can get real-time information on a person’s purchases by writing their own subpoena, followed up by a order from a judge that the surveillance not be disclosed. Agents can also go the traditional route — going to a judge, proving probable cause and getting a search warrant — which means the target will eventually be notified they were spied on.

The document suggests that the normal practice is to ask for all historical records on an account or individual from a credit card company, since getting stored records is generally legally easy. Then the agent sends a request for “Any and all records and information relating directly or indirectly to any and all ongoing and future transactions or events relating to any and all of the following person(s), entitities, account numbers, addresses and other matters…” That gets them a live feed of transaction data.

It’s not clear what standards an agent would have to follow to get a “Hotwatch” order. The Justice Department told Sogohian the document is the only one it could find relating to “hotwatches” — which means there is either no policy or the department is witholding relevant documents.

What is particularly disturbing, and as the document (which I’ve embedded below) makes clear, Federal law enforcement surveillance of American citizens isn’t limited to to phone calls, emails and GPS tracking information. They also go after calling cards, credit cards, rental cars, airline reservations, and even retail shopping clubs. While this could be considered good police work when you’re using it to track someone as part of an ongoing criminal investigation, it’s the manner in which the government obtains this information that’s the problem.

As this document shows, the DOJ’s preferred method of obtaining this information is through an administrative subpoena rather than a search warrant obtained through a judge after a showing of probable cause. The only role that courts play in this process is that they issue non-disclosure orders to the banks, preventing them from telling their customers that the government has spied them and is tracking them via their credit cards. There is no Fourth Amendment analysis conducted by a judge when those non-disclosure orders are issued, and banks generally have no legal basis on which to challenge the appropriateness of the order in a given case (and of course the subject of the surveillance is completely unaware of the subpoena and thus has no basis to challenge its propriety).

All of this is an outgrowth of the broad surveillance powers given to Federal law enforcement after 9/11 and as part of the “war on drugs,” and it stands as evidence to support the argument that once such powers are granted, they will be used for more than just tracking down national security threats. And, finally, the irony that this is happening under a Democratic President who campaigned for office by denouncing the broad authority that had been asserted by the Bush Administration since 9/11 should be lost on nobody.

DOJ powerpoint presentation on Hotwatch surveillance orders of credit card transactions

FILED UNDER: Law and the Courts, US Politics
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010 and contributed a staggering 16,483 posts before his retirement in January 2020.

Comments

  1. john personna says:

    The guy who wrote Database Nation saw it all coming.
    Now, are you accepting about private companies having these same tools, and upset only when government accesses them?
     

  2. Patrick T. McGuire says:

    I guess this means they know about all the ammo I purchased?

  3. Bob in Zion says:

    By your headline one might think they were doing it to everyone, but as is pointed out early on it’s during criminal investigations.
     
    Don’t commit crimes and evidently it’s not much of an issue, unless you need a headline.

  4. Tlaloc says:

    By your headline one might think they were doing it to everyone, but as is pointed out early on it’s during criminal investigations.

    Similarly there’s no need for miranda rights because only criminals get arrested.  In fact that whole trial thing is an antiquated notion from the time when we used to actually arrest the innocent.  As this never happens anymore there is no need to have any determination of guilt and we should allow police to immediately execute criminals.  And anyone who complains is ipso facto a criminal, of course.
    I love people who are just too dumb to understand the basic concept of jurisprudence.

  5. Keith says:

    Don’t commit crimes and evidently it’s not much of an issue, unless you need a headline.

    Bob in Zion, you’re either government employee sent to try and minimize the importance of this violation of our rights, or your one of those “useful idiots” that governments love to have as citizens. Since, I’m not one for conspiracies. I tend to lean towards the latter. 
    The Fourth Amendment is there to protect us against this types of invasion of privacy. The FBI is beaking the law. Law enforcement does not have the authority to write it’s own subpoenas or search warrents. Until there is a constitutional amendment the government has know right to spy on us.

  6. Keith says:

    Chalk my mispellings up to my government edumication.

  7. Ben says:

    “Now, are you accepting about private companies having these same tools, and upset only when government accesses them?”
     
    Yes, because a private company seize and auction off my assets, can’t throw me in jail, or any of the myriad other things the government can do to ruin my life.
     
    “Don’t commit crimes and evidently it’s not much of an issue, unless you need a headline.”
     
    :eyeroll:  Because, obviously, no one has EVER been investigated that was innocent, right?  Why in the world do we even need a legal system under that assumption?

  8. Sleeping Dog says:

    What did you expect to happen after the passing of the Patriot Act? A gaping hole in our protection against government intrusion and two administrations have shredded them. While over in the private sector others parse the same information in the quest to put a petcock in our bank accounts.

  9. An Interested Party says:

    “Chalk my mispellings up to my government edumication.”
    It’s a pity that you didn’t seek out a free market corrective to your government miseducation that causes you to make all your “mispellings”…
     

  10. john personna says:

    “Yes, because a private company seize and auction off my assets, can’t throw me in jail, or any of the myriad other things the government can do to ruin my life.”
     
    They can only deny you credit, a job, medical care.
     
    I imagine that my profile is pretty median, and that my shopping is oriented toward outdoor gear would be a positive … but hey, some company could classify me as “unserious” based on that data.
     

  11. Linda says:

    I don’t care why they’re doing it, if they’re doing it without a warrant, it’s an issue.

    Seems to me that there’s something very “1984 Big Brother” about this….

  12. Kathy K says:

    Well, back to cash. I wonder how long it will be till you can’t buy your groceries with cash anymore?

  13. Bob in Zion says:

    Bob in Zion, you’re either government employee sent to try and minimize the importance of this violation of our rights, or your one of those “useful idiots” that governments love to have as citizens. Since, I’m not one for conspiracies. I tend to lean towards the latter

    Actually I’m one of the (evidently few) realists left in the world. In a perfect world we would do everything with (publicly recorded) warrants, and consistently above board methods.

    Unfortunately we live in a world with two very horrible classes of people, criminals and defense lawyers. Criminals we know to be bad, they commit crimes. Lawyers we know to be bad, they look to make any way of catching a criminal a crime, and make the criminal the victim.

    Google my town (Zion) and Hobbs together. You’ll find the horrible story of a guy held in jail for about 5 years for killing his daughter and her friend. Except he didn’t. Do I think it’s a travesty? Yes, certainly. Do I think the government should pay? Oh Yeah. Do I think we should immediately pass a law with strict time limits and judicial oversight on every criminal interrogation to prevent it from ever happening again? No. Every case is different, every circumstance is different. Sometimes, as nice as the 4th Amendment is (though poorly written, and interpreted even worse) it gets in the way of legitimate police cases. Thank the defense bar and appellate courts for that.

  14. nevrdull says:

    Actually I’m one of the (evidently few) realists left in the world.
    well then, i you are a realist, then apparently the rest of us don’t live in your reality (luckily for us). the rest of your entry reads like a rant of someone who is unacquainted with the criminal justice system.

  15. nevrdull says:

    PS: there should be a blockquote in there: preview function would be nice, just sayin’

  16. Mike says:

    Actually, a judge doesn’t have to make a 4th amendment analysis here because there is no 4th amendment issue. They are not obtaining information from a suspect, they are obtaining information from a third party which the suspect has willingly disclosed the information to. Thus, under 4th amendment jurisprudence, they are not the suspect’s private papers, but part of the bank’s business records. U.S. v. Miller, 425 U.S. 435 (1976). This is long settled law, not an outgrowth of 9/11 surveillance powers.