An intelligence agency has just confirmed that the US government does indeed buy location data collected by its citizens’ smartphones. In a memo sent to Sen. Ron Wyden (D-OR) and obtained by The New York Times, the Defense Intelligence Agency (DIA) admitted that it buys location data from brokers — and that the data isn’t separated by whether a person lives in the US or outside of it.
Data brokers are companies that, as the name implies, collect and sell people’s information. The companies collect people’s location information (and much more) by paying app makers and websites for it. Once the broker has the information, they can aggregate it and sell it to whoever’s willing to pay for it — including the US government.
In the memo, the DIA says that its “personnel can only query the US location database when authorized through a specific process” that requires approval from senior leadership, the Office of Oversight and Compliance, and the Office of General Counsel. The DIA also says that in the past two and a half years, it’s been given permission to look through US device location data five times.
The Fourth Amendment requires government agencies to get a warrant before they can compel data from a third party like a phone company — a rule most recently upheld by the Supreme Court’s Carpenter decision. But the DIA argues that the ruling doesn’t apply to getting that same data from brokers because the agency isn’t invoking the power of law. In the memo it states that the agency “does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes.”
The American Civil Liberties Union disagrees. In a statement provided to The Verge, senior staff attorney Ashley Gorski said that “the government cannot simply buy our private data in order to bypass bedrock constitutional protections,” and called on Congress to “end this lawless practice and require the government to get a warrant for our location data, regardless of its source.”
We’ve been aware for a while that government agencies have been using data brokerages to get around having to obtain a warrant for location information, but some legislators are working to close the loophole. Sen. Wyden, who requested the memo be made, has a bill called “The Fourth Amendment Is Not For Sale,” which aims to “ban the government from buying information that would otherwise require a court order or a warrant.”