Government Use of Data Brokers: A Privacy Battle at the Edge of Law
An industry of data brokers acquires electronic information from sources like cell phone applications and web browsers. This data is sold to advertisers and also to police departments and federal government agencies, including bulk cell phone location data. Privacy advocates state that these governmental purchases can reveal intimate details about Americans without a warrant.
These governmental purchases can reveal intimate details about Americans without a warrant.
Fourth Amendment Loophole and FISA Reauthorization
Congress is anticipated to address the reauthorization of Section 702 of the Foreign Intelligence Surveillance Act (FISA), which is set to expire on April 20. This legislative process is identified as an opportunity to close a known loophole that allows government agencies to purchase data on U.S. citizens without a warrant. This practice circumvents a 2015 law change that aimed to prevent federal agencies from collecting bulk data on U.S. citizens directly.
This legislative process is identified as an opportunity to close a known loophole that allows government agencies to purchase data on U.S. citizens without a warrant.
Calls for Reform and the FBI's Stance
Approximately 130 civil society organizations have signed a letter urging members of Congress to include the closure of the data broker loophole in the FISA 702 reauthorization. They cited concerns about an "unprecedented expansion of warrantless mass surveillance" and the potential for the loophole to be used to "supercharge AI-powered surveillance."
During a Senate hearing, Senator Ron Wyden (D-Ore.) asked FBI Director Kash Patel if he would commit to not buying Americans' location data. Director Patel declined, stating the FBI "uses all tools" and purchases "commercially available information that's consistent with the Constitution and the laws under the Electronic Communications Privacy Act." In 2023, then-FBI Director Christopher Wray had indicated the agency had moved away from using "commercial database information that includes location data derived from internet advertising."
The FBI "uses all tools" and purchases "commercially available information that's consistent with the Constitution and the laws under the Electronic Communications Privacy Act."
AI and Enhanced Surveillance Capabilities
Location records from brokers are typically unlinked to a device owner's name; however, tools exist that assist law enforcement in tracking device movements. Artificial intelligence tools can further enhance the power of such data. Dario Amodei, CEO of the AI company Anthropic, warned that records the government can purchase could be used by AI to assemble "a comprehensive picture of any person's life—automatically and at massive scale." Amodei's position against using Anthropic's technology for domestic mass surveillance has led to a dispute with the Pentagon.
AI could assemble "a comprehensive picture of any person's life—automatically and at massive scale."
Other Federal Agencies Involved
Immigration and Customs Enforcement (ICE) is among federal agencies known to have contracts for tools that rely on cell phone location information sourced from data brokers. These tools are reportedly used for surveilling immigrants, individuals recording federal agents, and protesters. ICE had previously requested industry feedback on "commercial Big Data and Ad Tech" for investigations and signed a contract with Penlink for its Webloc program, which tracks mobile phone movements. Penlink stated it filters sensitive locations and complies with applicable laws and regulations.
The Legal and Legislative Battleground
Privacy advocates assert that government data purchases without a warrant contribute to an expanding infrastructure of private sector surveillance. They consider the upcoming FISA reauthorization to be the primary opportunity this year to enact meaningful privacy protections.
Government data purchases without a warrant contribute to an expanding infrastructure of private sector surveillance.
Bipartisan legislation, co-sponsored by Rep. Warren Davidson (R-Ohio), Sen. Mike Lee (R-Utah), Rep. Zoe Lofgren (D-Calif.), and Sen. Ron Wyden, aims to end the data broker loophole and implement other FISA reforms. Representative Davidson stated that this practice involves collecting data that would typically not be obtainable with a broad dragnet warrant and also hopes to close the "backdoor search" loophole. The White House and House Speaker Mike Johnson, however, are advocating for a clean reauthorization of FISA without changes.
Courts have not yet ruled on the practice of the federal government buying bulk data from data brokers. Privacy advocates argue this practice fundamentally circumvents the Fourth Amendment and contradicts the 2015 USA Freedom Act, which banned bulk collection of Americans' phone records following Edward Snowden's leaks. They cite the 2018 Supreme Court case Carpenter v. United States, which ruled that law enforcement needs a warrant to obtain historic cell phone location data from cell phone towers, suggesting this principle should apply to purchased data.