Rights Advocates Alarmed by US Spy Agency’s Purchase of Warrantless Phone Location Data

By Brett Wilkins, staff writer at Common Dreams. Originally published at CommonDreams

Digital rights advocates reacted with alarm to a report published Friday detailing how Defense Intelligence Agency analysts in recent years bought databases of U.S. smartphone location data without first obtaining warrants.

The Defense Intelligence Agency (DIA) is part of the Department of Defense and is tasked with informing military and civilian policymakers about the activities and intentions of foreign governments and nonstate actors.

The new revelation, first reported by the New York Times, initially came in the form of DIA responses to questions from Sen. Ron Wyden (D-Ore.) regarding the agency’s warrantless purchase of commercial location data generated by phones both inside and outside of the United States.

Wyden asked the DIA to clarify its interpretation of Carpenter v. United States, a 2018 U.S. Supreme Court decision barring law enforcement agencies from requesting personal location information from a cellphone company without first obtaining a search warrant from a judge.

“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 replied, implicitly acknowledging its exploitation of an apparent loophole in the case that DIA believes permits its warrantless acquisition of location data from third-party brokers.

Furthermore, Wyden asked whether DIA operatives differentiated between phone location data obtained inside the U.S. and abroad.

“DIA’s data provider does not supply separate streams of U.S. and foreign location data,” the agency explained, “and so DIA processes the location data as it arrives to identify U.S. location data points, which it segregates in a separate database.”

“DIA personnel can only query this database of U.S. location data when authorized by the DIA chief of staff and DIA’s office of general counsel,” it added. “Permission to query DIA’s database of commercially acquired U.S. device location data has been granted five times in the past two-and-a-half years, when DIA first started buying this source of data.”

Last September it was revealed that the U.S. military was purchasing device location data from apps—including a Muslim prayer app used by tens of millions of people around the world—and using it for counterterrorism purposes.

“The military industrial complex and the surveillance state have always had a cozy relationship with tech,” Rep. Ilhan Omar (D-Minn.) said at the time. “Buying bulk data in order to profile Muslims is par for the course for them—and is absolutely sickening. It should be illegal!”

To that end, the ACLU in December filed a lawsuit to determine how and why federal agencies are buying access to bulk databases of Americans’ cellphone location information and skirting  the Fourth Amendment’s warrant requirement.

And as The Hill reported Friday, Wyden plans to introduce legislation—the Fourth Amendment Is Not for Sale Act—which would prohibit government agencies from buying personal information from data brokers.

“I think we’ve really reached the point where you have so much data floating around that governments can essentially buy their way around the Fourth Amendment,” Wyden lamented last November.

In a Senate speech on Wednesday, Wyden condemned the status quo “in which 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.”

Digital and pivacy rights advocates agree.

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

News of the DIA warrantless data acquisition came a day after Avril Haines was sworn in as President Joe Biden’s director of national intelligence. Haines will oversee the nation’s 18 intelligence agencies, including the DIA.

Wyden supports Haines’ appointment, in part due to what he called her “commitments related to transparency issues.” A broad range of progressive groups, however, strongly opposed her nomination.

During her Senate confirmation hearing earlier this week, Wyden asked Haines about government abuse of commercially available location data.

“I would seek to try to publicize, essentially, a framework that helps people understand the circumstances under which we do that and the legal basis that we do that under,” she replied. “I think that’s part of what’s critical to promoting transparency generally so that people have an understanding of the guidelines under which the intelligence community operates.”

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  1. Iane

    The weirdest thing about this story is that people are mad at DIA for buying the data, not that the data is commercially available in the first place. Everybody’s seen all the Facebook scandals and kept using Facebook so I guess we’ve just accepted that part?

    This is just the tip o’ the iceberg, guaranteed.

  2. the suck of sorrow

    Ms Haines thinks a ‘framework’ will sooth our fears of unwarranted government searches through our data.
    I think a simple declarative statement along the lines of: “We will always obtain a warrant before obtaining any data in any form” would be what we citizens should hear.

    1. Massinissa

      The problem for them is, if they said that, they would be lying. So they’re going to weasel around things and make a ‘framework’ for it that doesn’t actually prevent them from doing the things they want to do.

      1. polar donkey

        This reminds me of Captain America Winter Soldier. Haines is like Robert Redford’s character. She was point person for creating legal framework of algorithm to drone strike people. Hail Hydra.

        1. Hepativore

          Well, if and when people do try mass rebelling against our overlords, the elites need to make sure where to send the drones to quell the peasantry with. The Posse Comitatus Act will probably be ignored just like the MIC does with every other legal protection for the citizenry.

          As a bonus, the DIA can probably make money on the side selling location data to private companies like Amazon to make sure that their workers are not trying to organize labor unions.

  3. Bill Smith

    Why should people be shocked about the use of information gathered from a prayer app for this purpose any more, than for example, a fitness app?

    It looks like they do segregate endpoints in the US. For which I believe they should deal with separately. Perhaps by getting the CSEC or CSIS, the Canadian versions of the NSA and CIA, to get that data for them :)

    But is the argument they need a warrant to get data that is from overseas is another question? And should a warrant be required for all means of obtaining such data?

    There are other technical means of getting similar data. For example, the use of a Stingray located in a major middle eastern city.

    Or even direction finding techniques that simply suck up all cell phone transmissions that are made when a call is not underway. These equipment can be located expensively in space, much cheaper in a drone or even in a rented apartment in a highrise (corner apartment is best) to cover a large part of a city. The actual cost of the equipment for this if it is not going into space is only about two hundred dollars. Antenna, Pi, SDR, stick, memory card, memory stick, software and backup power.

  4. lyman alpha blob

    The claim is they are only using data that is commercially available. My question is how is it legal for this data to be commercially available in the first place?!?!?

    I didn’t care for the practice of magazines selling their list of subscribers’ home addresses to 3rd parties back in the day, and modern practices have gone way past that level of intrusiveness. I don’t recall US citizens giving their permission for any of it.

    1. The Historian

      ” My question is how is it legal for this data to be commercially available in the first place?!?!?”

      And that is the BIG question.

      Have you ever read the TOS for your phone service, which whether we like it or not, is something that is a necessary item that most of us cannot live without?

      First, you will have a LOT of reading to do – and then you come to the page where it says that they sell your information to other vendors but they aren’t responsible for what those vendors do with your information – and they don’t give you a list of their vendors. So how are you to know where your information is going? But what are you going to do? Go without a phone?

      Now your phone company will say “it is a contract, and it is up to you to understand that contract”. As if all contracts are legal and understandable – and as if you have any recourse for a breach of that ‘contract’.

      1. redleg

        Since all phone services have effectively the same TOS, how isn’t this illegal under the Sherman Antitrust Act? A person cannot function in this society without a phone, and three are no alternatives, so what’s the alternative to the cartel?

        1. ambrit

          I fear that the bottom quintile of the American population is going to have to learn to live ‘outside’ of the “official” society.
          America is creating a semi-formal “untouchables caste.”
          Let us call it, “The Deplorables Caste.”

          1. Massinissa

            “I fear that the bottom quintile of the American population is going to have to learn to live ‘outside’ of the “official” society.”

            You would think the elites would do something about this, seeing as how forcing people off the grid is the easiest way to make it much harder to track people.

            But quite frankly, most of the elite probably don’t even understand how the impoverished get by even now. They probably won’t even notice. Sigh, at least Maggie Thatcher, as horrible as she was, at least knew how much a gallon of milk cost…

            1. ambrit

              Maggie Thatcher was the more effective evil.
              Most elites are indeed clueless. While they are satisfied to stymie any “high value” potential threats to the status quo, the cumulative threat of the combined energies, even though low and “insignificant” individually, of a mass of ‘lower class’ threats flies below their radars.

  5. The Rev Kev

    This is just some fancy legalisms. The US government can’t do it but, but, if it is a commercial company is doing it no rules apply. And we know that Silicon Valley is now an unofficial tier of government that can do stuff for the government that the government is forbidden to do so this is just more of the same.

    Saw another example of this at work. The US is part of the Five Eyes but is forbidden by law on spying on Americans. So what happens is that another member of the Five Eyes like Canada or Australia will “just happen” to come across the material wanted by the US as they spy on Americans so in the spirit of cooperation, they will forward all that data to their counterparts in the US – with no laws broken.

  6. tegnost

    Sorry but before I even started reading I thought to myself isn’t that stuff for sale commercially? It shouldn’t be for sale at all, but tell that to the lords of chaos at google facebook amazon apple and a host of scoundrels who operate (legally) under the radar. Anyone who utters the claim about anything excusing our predatory power elite by saying “that’s not who we are” is either lying or a gullible fool.

    1. ObjectiveFunction

      Ha, I was going to post this over in Links as ‘batsh£t crazy money’, but maybe it belongs here instead….

      Pop goes Telkom Kenya’s rural coverage as Loon sinks its balloons

      As we all know well, if you depend on a Google balloon, you don’t have a Masai cattle herding business…

      But wait, it gets better! in the last paragraph there’s talk of replacing the balloons with a hydrogen powered aircraft. So then what, you can drone strike the Masai if they don’t pay their bills?

      Perhaps if we built this large wooden Badger….

  7. Kurtismayfield

    It is our own fault.

    We pay for a service that tracks us all the time while the phone is on. We all chose this path. There is no realistic expectations of privacy while you are carrying around a device that is putting out EM signals.

    A very realistic way to stop this exists, get rid of your cell phone.

    1. Synoia

      One could be private.
      Are people willing to pay extra for privacy?

      1. There are thee parts of cell phone tracking
      2. The Imsi number, and The Imei Number
      3. The phone number, the Calling Number and the The Called number
      4 Google (Android) and Apple user surveillance

      Will people pay for a phone that does not automatically collect expose these number and information?

      It can be done, will people pay for it?

      If so how much – and one must be careful to meed the laws on phone call intercept, which vary from county to country..

  8. topcat

    I think that it is safe to say, that international terrorists will not be using their smart phones to plan the next world-domination project. Hence the monitoring is just pure surveillance of the population – just in case. As the germans say (and they should know), Vertrauen ist gut, aber Kontrolle ist besser.

  9. ambrit

    Phyl and I generally do not carry our cell phone around with us.
    We do not own or use any sort of i-phone, i-pad, or laptop device.
    We do not use ‘apps’ on our desktop computer whenever we can get away with it.
    From what I see “on the street” today, that makes us Neo Luddites.
    Lest anyone forget, Ned Ludd led a movement of small scale artisans in a campaign against new technology that was immiserating those small artisans. Luddism was an economic movement. Today’s anti-panopticon crusaders campaign against forces that threaten to dehumanize the population entire. Our modern struggle is an existential struggle on the, for want of a better word, moral plane.
    Commodities are not beings. Commodities are things. What the ‘elites’ need to consider is that, once one member of a class becomes legally defined as “less than human,” the entire class can be so defined.
    One thing I see arising from the last few decades of the American Empire Experience is that “Exceptionalism,” the only argument I can see that allows differences in kind concerning the treatment of sub-units of a class of persons, has been shown to be a bankrupt concept.
    Rant off.
    Stay safe all!

    1. Synoia

      Exceptionalism, has to me, two distinct meanings:

      1. We are Better than others.
      2. The rules don’t apply to us.

      Which meaning does the US employ when call itself exceptional? Or was it 1 and is now becoming 2?

      I suspect believe the US Native population ever had much benefit from the first definition, “Better than others.”

      1. ambrit

        I see your Rule 2 as proceeding from Rule 1. It is also a classical case of circular logic. If A, then B and thus if B, so A.
        To continue your mention of the “Native” population’s travails; their experience of the White Man’s “better” was the unfortunate humiliation of a technically ‘inferior’ culture clashing with a technically ‘superior’ culture. As an example; the Plains Indians were defeated by the indirect strategy of destroying their primary resource, the buffalo. That was accomplished through the use of a ‘superior’ technology, the high powered rifle. A similar dynamic holds true for today’s wage earning population. ‘Destroy’ their source of support, and you ‘starve’ them out.
        The more things change….

    2. flora

      Phyl and I generally do not carry our cell phone around with us.
      We do not own or use any sort of i-phone, i-pad, or laptop device.
      We do not use ‘apps’ on our desktop computer whenever we can get away with it.

      Well, that puts a log in Polyphemus’s eye. ;)

      1. ambrit

        Odysseus we ain’t, by a long shot. We are members of the Terran Human race insofar as we also have to deal with the telecom Circes and their ‘spell’ of enswinement.
        Resisting the allures of “glamour” is a lifelong ordeal.
        Be of good cheer ‘flora.’ Stay safe.

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