Last week the Defense Intelligence Agency (DIA) admitted to bulk purchasing commercially available U.S. smartphone location data and using it to search the movements of Americans.
In a memo provided to Sen. Ron Wyden (D-OR), obtained by the New York Times, the DIA confirmed it has a database of U.S. phone location data, which it has used five times in the past two-and-a-half years since the database was established.
The DIA said access to the database of U.S. phone location data is limited. The agency said personnel “can only query the U.S. location database when authorized through a specific process requiring approval from the
Office of General Counsel (OGC) Office of Oversight and Compliance (OOC)
and DIA senior leadership.”
The DIA’s surveillance methods come despite a 2018 Supreme Court decision, Carpenter v. the United States, which ruled the government must obtain a warrant to compel cell phone companies to turn over location data.
The DIA memo suggests a loophole exists where the government may obtain commercially available phone location data through a purchase, rather than compelling a warrant.
The intelligence agency said, “DIA does not construe the Carpenter decision to require a judicial warrant endorsing purchase or use of commercially available data for intelligence purposes.”
The DIA added, “Carpenter involved an administrative subpoena from law
enforcement authorities to secure site records revealing the whereabouts of a specific U.S. person over an extended period. TheSupremeCourtheld, inter alia, that the government’s acquisition of the site information under such
circumstances – event hough the information came from a third party – qualified as a search under the Fourth Amendment. By its terms, the decision in Carpenter is “a narrow one.” The Court expressly did not ” consider…collection techniques involving national security.” By extension, the Court did not address the process, if any, associated with commercial acquisition of bulk commercial geolocation data for foreign intelligence/ counter-intelligence purposes.”
Wyden addressed the DIA’s data collection practices during a Senate confirmation hearing to approve Avril Haines, President Joe Biden’s nominee to serve as the Director of National Intelligence. Wyden said, “the government, instead of getting an order, just goes out and purchases the private records of Americans from these sleazy and unregulated commercial data brokers who are simply above the law.”
Wyden said he is preparing legislation changing the rules on commercial data purchases, “To make it clear the Fourth Amendment is not for sale.”
