US intelligence agency buys location data from phone brokers, without warrants

A memo released Friday details how the US Defense Intelligence Agency, or DIA, collects location information without a warrant. The agency pays for the information from data brokers, who often get it from third-party apps running on users’ phones. Made public by The New York Times, the memo says the purchased data does include location information for US residents, though there are more restrictions on how the agency can use that info.

The practice shows that intelligence agencies have ways to collect location data without warrants in spite of a 2018 US Supreme Court decision ruling that warrants are necessary to collect the location data of US residents. Known as the Carpenter decision, the ruling held that the Fourth Amendment requires investigators to clear a higher bar before accessing data that can create a timeline of a person’s every movement.

“The DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially-available data for intelligence purposes,” the agency said in its memo. The DIA, which exists to collect intelligence on foreign militaries for US defense efforts, didn’t immediately respond to a request for comment. According to the memo, the location data comes with US and foreign data mixed together. The agency said it puts data from US residents in a separate database that requires special permission to access. It’s been accessed five times in the past two and a half years.

The news follows a November report from Vice that the US Special Operations Command had purchased location data collected by a third-party data broker from an Islamic prayer app called Muslim Pro. The app maker said it would stop selling its users’ location data. The same month, the US Department of Homeland Security came under investigation by its inspector general after Buzzfeed reported an internal memo showed it was collecting phone location data without warrants for immigration enforcement.

Sen. Ron Wyden, an Oregon Democrat who advocates for privacy rights, decried the practice in remarks at the Capitol on Thursday. Calling the data brokers “sleazy and unregulated,” Wyden pressed President Joe Biden’s nominee for director of national security, Avril Haines, on the issue.

“It’s especially important that the American people are being told if the government is using legal loopholes in the law and in the warrant requirement of the Fourth Amendment,” Wyden said.

ACLU Senior Staff Attorney Ashley Gorski said in a statement that the DIA memo reveals that more and more government agencies are ignoring the law. The ACLU argued the Carpenter case in the Supreme Court.

“The government cannot simply buy our private data in order to bypass bedrock constitutional protections,” Gorski said. “Congress must end this lawless practice and require the government to get a warrant for our location data, regardless of its source.”