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Sen. Jon Tester (D-MT) has sent a letter to the Department of Homeland Security and outgoing Attorney General Eric Holder to learn more about the use of “dirtboxes,” which collect phone data by masquerading as a nearby cell tower. The letter, which was co-signed by Democratic and Independent senators from Alaska, Vermont, and other states, argues that dirtboxes “potentially violate the Fourth Amendment and represent a significant intrusion into the private lives of thousands of Americans.” . The senators wrote the letter, which was sent on Wednesday, in response to a Wall Street Journal report about a US Marshals program that attaches these dirtboxes to planes flying across the United States. This reportedly allows law enforcement to collect information about “tens of thousands” of citizens under the planes’ flight path. It’s not clear how often these planes are flown. But it is clear that the devices  can determine someone’s location within a few meters, which could allow law enforcement to tell if that person is in a specific room inside a building, instead of merely knowing their general location. The devices are also thought to be able to snoop on phone calls, text messages, and other information transferred to affected cellphones.

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Still, is the Justice Department’s airborne dragnet program legal? The answer is “maybe.” Federal authorities have employed similar tools in the past. The Federal Bureau of Investigation is known to use a surveillance tool called a “stingray,” a portable transceiver that tricks cell phones within a certain area into relaying their locations, not unlike the equipment onboard the Marshals’ aircraft. A government vehicle with a stingray can net hundreds of nearby cell phones’ approximate locations just by driving through a typical neighborhood. The government has said it doesn’t need a probable cause warrant to use stingrays because investigators don’t collect the content of phone calls, just the locations of those phones. Government officials, meanwhile, have said they get court approval to use the devices. Much of the government’s warrantless use of stingray-style technology hinges on a 1979 Supreme Court decision titled Smith v. Maryland. Smith involved law enforcement’s use of a device called a pen register that, when attached to a suspect’s phone line, recorded the numbers of outgoing calls, but not the calls themselves. The Smith decision upheld the warrantless use of such devices because the suspect’s phone company would record the same data picked up by the pen register, and therefore the suspect had no reasonable expectation of privacy when it came to that information. Currently, the law requires a court to approve the use of a pen register, but investigators only have to show that the device’s use is “relevant to an ongoing criminal investigation,” a much weaker standard than a probable cause warrant requires.

However, to get back to the Smith decision, wireless carriers do store your location history for several months to several years, information they obtain by keeping a record of the cell towers to which your device connects as you move from place to place. That could mean Americans don’t have a reasonable expectation of privacy over their location data and the Smith precedent applies, making the DoJ’s aerial surveillance program legal. Still, that would be a matter for the courts to decide. “There are a lot of tricky questions whether a stingray or dirtbox operated by the government directly is a pen register, or the Fourth Amendment concerns dismissed by the Supreme Court 35 years ago in Smith v. Maryland are more applicable here,” Fakhoury said.

Hanni Fakhoury, an attorney at the pro-privacy Electronic Frontier Foundation, says the Department of Justice could use the Smith precedent as legal justification for the airborne dirtbox program. However, Fakhoury also highlighted a key problem with that argument: Location. Pen registers aren’t intended to pick up location data beyond an area code, whereas the airborne dirtboxes can track a person down to a single building. Many courts, he said, have expressed that location data deserves greater constitutional protection than is afforded to other kinds of information.