FBI Tells Senate It’s Still Bypassing 4th Amendment By Purchasing Location Data From Third Parties

In 2018, the Supreme Court ruled that warrants were needed to obtain cell site location info (CSLI). That decision dealt with law enforcement’s warrantless acquisition of 127 days of location data from a cell service provider. As the court saw it, the government was leveraging access to this data to turn cell phones (which has been given heightened protections with the 2014 Riley decision) into government tracking devices, all without having to bother with warrants or deploying government-crafted tracking tech.

The rationale for this 4th Amendment bypass was this: location data slurped up by websites and downloaded apps wasn’t exactly the same thing as cell tower location data. Therefore, it could be had without a warrant. In fact, it could be had without bothering the courts at all with a subpoena or any other lighter-weight legal paperwork. The government could just buy this data and sort through it to find what it was looking for. Some third parties were even willing to do the sorting for the right price, freeing the government up to pursue other rights violations.

This option obviously experienced a jump in popularity following the Supreme Court’s Carpenter ruling. While the spokespeople constantly stated the agencies they represented (which was pretty much all of them when it came to buying data from data brokers) were super-interested in respecting constitutional rights, they never took the time to explain their “respect” meant constantly testing (or breaking!) the boundaries until court precedent forced them to do otherwise.

In 2023, anti-encryption zealot Christopher Wray was heading the FBI. During the last years of his tenure, he admitted to Congress (or, more specifically, privacy hawk Senator Ron Wyden) that the FBI was — like CBP, ICE, US Secret Service, IRS, and federal prisons — buying up as much location data as it could purchase. Wray insisted this process was “court-authorized,” but somehow couldn’t find any court documents laying around that would support his claims of authorization.

The government is still buying this data. And it’s even more problematic than it was a few years ago, when federal agencies weren’t being run by MAGA loyalists and outright racists. Now there’s a new wrinkle: the government is delving into ad markets to siphon off RTB (real-time bidding) data that’s capable of tying location data to specific devices, even if those hawking the data pretend it’s been anonymized.

So, it comes as absolutely no surprise that aspiring frat bro Kash Patel’s FBI is doing the same thing that plenty of immigration-focused agencies are already doing. Yet again, it’s Senator Wyden demanding answers. And it’s Kash Patel answering the questions without honestly engaging with the questions. Here’s Zack Whittaker with the details for TechCrunch:

When asked by U.S. Senator Ron Wyden, Democrat of Oregon, if the FBI would commit to not buying Americans’ location data, Patel said that the agency “uses all tools … to do our mission.”

“We do purchase commercially available information that is consistent with the Constitution and the laws under the Electronic Communications Privacy Act — and it has led to some valuable intelligence for us,” Patel testified Wednesday.

First, there’s the obviously false insistence that this is all very constitutional. Buying location data from data brokers doesn’t just violate the spirit of the Supreme Court’s Carpenter decision, it’s only a letter or three off from violating the letter of the law. When the only difference is where you’re obtaining long-term location tracking data, you’re just exploiting loopholes rather than actually trying to be “consistent with the Constitution.”

The second part is even stupider. When you claim that legally-questionable efforts have “led to some valuable intelligence,” you’re just saying that the ends justify the means. And if that’s the low bar you’ve set for yourself, you’re going to be violating rights regularly because you prefer harvesting data to respecting rights.

This sums up the government’s stance concisely:

The FBI claims it does not need a warrant to use this information for federal investigations; though this legal theory has not yet been tested in court.

The government — especially this one — will never err on the side of restraint. It would rather explore the outer edges of legal theory, sacrificing our rights in exchange for more government power. At some point, this legal theory will be tested. But until it is, the government is going to continue to pretend the implications of Carpenter don’t apply to anything that hasn’t been specifically ruled unconstitutional.